Ingram Book Co.

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 515 (N.L.R.B. 1994)

515
315 NLRB No. 65
INGRAM BOOK CO.
1 On June 29, 1994, Administrative Law Judge Claude R. Wolfe
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The Respondent refers to its employees as associates.
Ingram Book Company, a Division of Ingram In-
dustries, Inc. and Cynthia Denise Potts. Cases
5–CA–23543 and 5–CA–24379
October 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
This case presents the issue of whether the judge
correctly found that the Respondent’s officials commit-
ted several violations of Section 8(a)(1) of the Act.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,2 and conclu-
sions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ingram Book Company, a
Division of Ingram Industries, Inc., Petersburg, Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Lynette K. Zuch, Esq., for the General Counsel.
James P. Thompson, Esq. and Rhea E. Garrett II, Esq., for
Ingram Book Company.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Petersburg, Virginia, on
May 3, 1993, pursuant to charges filed on May 14, 1993, and
May 2, 1994, by Cynthia Denise Potts and complaints issued
on April 15 and May 2, 1994, alleging Ingram Book Com-
pany, A Division of Ingram Industries, Inc. (the Respondent)
has violated Section 8(a)(1) of the National Labor Relations
Act (the Act) in several respects. Respondent denies it has
violated the Act.
On the entire record, and after considering the able
posttrial briefs filed by the parties and the demeanor of the
witnesses appearing before me, I make the following
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
The Respondent is a corporation with an office and place
of business in Petersburg, Virginia, where it is engaged in
the nonretail sale and distribution of books and related prod-
ucts. During the 12-month period preceding the issuance of
each complaint in this proceeding, the Respondent, in the
course of its business operations described above, purchased
and received at its Petersburg facility products, goods, mate-
rials, and supplies valued in excess of $50,000 directly from
points outside the State of Virginia. At all times material to
this proceeding, Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. PRELIMINARY ISSUES
The complaint in Case 5–CA–23543 issued on September
30, 1992. It was amended on April 15, 1994, to allege the
maintenance of an unlawfully broad no-distribution rule. The
Respondent then filed a motion to dismiss certain portions of
the complaint, as amended, including the unlawful rule alle-
gation. By order of April 29, 1994, I granted the motion to
dismiss the unlawful rule allegation because there was no
showing of a factual nexus between that allegation and the
charge, citing Nippondenso Mfg. U.S.A., 299 NLRB 545
(1990), and denied the motion to dismiss the complaint in all
other particulars. On May 2, 1994, Potts filed a new charge
in Case 5–CA–24379 alleging the maintenance of the rule to
be violative of Section 8(a)(1) of the Act. General Counsel
on the same day issued a complaint so alleging. I granted
General Counsel’s motion to consolidate the two cases for
hearing over Respondent’s objection.
Respondent argues that the complaint in Case 5–CA–
24379 should be dismissed because it was solicited by the
General Counsel. Counsel for the General Counsel stated on
the record that she advised Potts of my dismissal of the un-
lawful rule allegation and her right to file a new charge
thereon, whereupon Potts did so. From this, Respondent de-
duces that General Counsel engaged in conduct prohibited by
General Counsel’s Casehandling Manual and the Act. Re-
spondent’s contention that the Casehandling Manual has been
violated by the General Counsel is a personnel matter to be
dealt with by the General Counsel, and is not an issue of the
complaint before me. On the evidence before me, I cannot
conclude General Counsel acted improperly in advising Potts
of her right to file a new charge. Respondent’s motion to dis-
miss the complaint in Case 5–CA–24379 is denied.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The No-Distribution Rule
Respondent distributes an Ingram Associates Handbook to
each employee1 as its preface shows. The rule in question
reads:
Associates are not permitted to distribute literature
such as brochures, booklets, pamphlets, or flyers at any
time except during Company-authorized fund-raising
drives.
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Rank-and-file employees do not generally carry lawbooks to
work or apply legal analysis to company rules as do lawyers, and
cannot be expected to have the expertise to examine company rules
from a legal standpoint.
3 Potts, although I do not credit all her testimony, was more be-
lievable than Pierce and seemed certain and convinced of the truth
of her testimony. Pierce’s testimony was not as impressive.
4 All dates hereafter are 1993 unless otherwise stated.
5 Dinwiddie, Virginia, is a small community near Petersburg, Vir-
ginia.
6 In all these instances I have applied the time-honored test of
whether the conduct at issue had a reasonable tendency, viewed ob-
jectively, to interfere with, coerce, or restrain an employee in the ex-
General Counsel contends the rule is too broad and its
maintenance violates the Act. Respondent argues: (1) there is
no evidence Potts knew the rule was in effect after her de-
parture from employment in March 1993; (2) there is no
proof any employee was aware of or admonished under the
rule; and (3) the following provision in the handbook renders
the rule void and ineffective if it violates the Act:
To the extent any policy may conflict with state or fed-
eral law, the Company will abide by the applicable
state or federal law.
The rule is, prima facie, too broad and presumptively in-
valid, 299 Lincoln Street, Inc., 292 NLRB 172, 186 (1988);
Our Way, Inc., 268 NLRB 394 (1983). Its mere maintenance
carries with it a possibility of enforcement against statutorily
protected activity, and therefore reasonably tends to interfere
with, restrain, and coerce Respondent’s employees in the ex-
ercise of their right to engage in such activity. Blue Cross-
Blue Shield of Alabama, 225 NLRB 1217, 1220 (1976);
Brunswick Corp., 282 NLRB 794, 795 (1987); 299 Lincoln
Street, supra.
Whether or not Potts knew of the no-distribution rule
when she left Respondent’s employ is irrelevant, but it would
seem likely that she and others were aware of the rule be-
cause it appears in a handbook specifically designed for and
distributed to them, as its introductory page indicates. That
no one was admonished for violations of the rule, if that in
fact be the case, is irrelevant because it is unlawful mainte-
nance of the rule, not enforcement of it, that is alleged. The
savings clause upon which Respondent relies is also a slim
reed to lean on. It is designed to protect the Respondent, not
its employees. There is no way an employee is likely to
know if any of the handbook provisions run afoul of some
law or other unless the employer so advises him or her. Re-
spondent makes no claim and advances no probative evi-
dence it advised its employees the no-distribution rule was
unlawful and/or void. In the absence of such notification the
employees have no reason to know the rule is unlawful.2 The
Board has consistently required employers to rescind and no-
tify all its employees of the rescission of no-distribution rules
when it has found the rules to be unlawful. See, e.g., 299
Lincoln Street, supra. The unlawful maintenance of the rule
here in question violates Section 8(a)(1) of the Act, and I
shall recommend the usual remedy.
B. Other Allegations in Chronological Order
On or about December 21, 1992, Potts and other employ-
ees met with Charles J. Pierce, then Respondent’s vice presi-
dent of operations at the Petersburg facility, and the Re-
spondent’s senior vice president of operations Lavona Rus-
sell and voiced their concerns about Respondent’s hiring and
promotion practices, supervisors showing favoritism to cer-
tain employees, plant temperature control, and other job re-
lated matters. Only Potts and Pierce testified concerning this
meeting. Potts is credited3 that she advised Russell she want-
ed to be treated fairly and would try to work with Respond-
ent, but would go to the Labor Board if there was no action
taken on the matters she and the other employees complained
of. Russell urged Potts not to go to the Labor Board. Pierce’s
testimony that the Labor Board was not mentioned is not
credited. I do not believe Potts deliberately concocted the
rather detailed and plausible course of events she described,
and she is credited except where specifically otherwise stat-
ed.
Later, on January 7, 1993,4 Potts and other employees met
with Respondent’s vice president of human resources, Terry
Cook. Cook solicited their problems and was told of em-
ployee dissatisfaction with their supervisors, working condi-
tions, promotion policy, and other matters. After this meet-
ing, Potts arranged an employee meeting for later in January
with the president of the Dinwiddie5 Civic League with the
aim of securing the Civic League’s support for the employ-
ees’ requests made to Respondent.
Potts met privately with Cook in the Company’s con-
ference room on January 12. The two generally agree that
they discussed the fact she had been denied a promotion, the
possibility there were racial problems, and various other
items of interest. Cook recalls that at some point in their
conversation Potts asked if Respondent’s move to Petersburg
from another city was due to union activity at the other facil-
ity. Cook says he denied that was the case, and the subject
of National Labor Relations Board or unions never came up
again. Potts relates an entirely different scenario with respect
to her conversation with Cook concerning the Board and
unions. Her testimony was convincing and is credited over
Cook’s denials. Accordingly, I find that after some discus-
sion on other matters, Cook asked why she would go to the
Labor Board. She replied she was tired of people telling her
she could leave if she was not happy. Cook asked if Potts
thought a union was necessary. Receiving an affirmative
reply from Potts with reasons therefor, Cook ventured that
Respondent did not want or need a union and if Potts was
unhappy it would be best if she left the Company. He further
advised Potts she could be fired for any or no reason, only
the Company could enforce their rules, and nobody could
make the Respondent do anything. Cook further warned that
if Potts was thinking about forming a union, she should leave
it alone. Here we have a high-ranking company official (1)
privately interrogating an employee concerning her union
sympathies, (2) following up with a statement the Respond-
ent did not need or want a union, with the ominous advice
it would be better for Potts to quit if she was unhappy, (3)
telling her she could be fired for any or no reason, and (4)
warning her to leave union activity alone. By so doing,
Cook, a high-ranking company official sitting in a locus of
authority, violated Section 8(a)(1) of the Act6 by coercively
517INGRAM BOOK CO.
ercise of the rights guaranteed him or her by Sec. 7 of the Act. See,
e.g., G. H. Hess, Inc., 82 NLRB 463 fn. 3 (1949).
7 Intertherm, Inc., 235 NLRB 693 fn. 6 (1978).
8 Melder is no longer an employee of Respondent and did not tes-
tify. Hannon’s uncontroverted account of what transpired during the
meeting is believable and is credited.
9 I do not find Melder was asking about union activity.
interrogating an employee concerning her union sympathies;
by telling Potts it would be better that she quit if she was
unhappy hard on the heels of his advice no union was want-
ed or needed;7 warning her how easy it would be to fire her,
and by so warning her conveying a threat of discharge if she
engaged in prounion activity; and by the additional warning
to leave union activity alone, which conveyed the same mes-
sage.
Herman Hannon was employed by the Respondent from
April 1992 to March 1, 1993, as a stocker, on February 1
he was called into the office for a private meeting with man-
ager of human resources, Gunner Melder.8 Hannon had met
with Melder on several previous occasions where the same
procedure, if not the content, was followed. The conversation
opened with Melder asking how everything was going.
Hannon told him a lot of employees were unhappy with Re-
spondent’s failure to promote part-time employees who were
qualified. Melder then asked if Hannon knew anything about
a meeting the prior week. Receiving a negative answer,
Melder pressed on, stating he had heard employees had met
with the Dinwiddie Civic League to discuss their complaints
about company related matters and things that had taken
place at Respondent’s facility. He then asked if there were
a lot of attendees at the meeting with the Dinwiddie Civic
League. Hannon denied any knowledge of the meeting.
Melder persisted by asking whether Hannon thought there
were 30–35 employees there. Hannon again replied he did
not know. Switching courses, Melder asked what Hannon
thought could be done to improve things in the warehouse.
Hannon suggested an evaluation and possible changes of su-
pervision. The meeting closed with Melder asking Hannon to
let him know if Hannon heard of any meetings or anything
similar going on. Hannon agreed to do so.
General Counsel alleges that Melder during this meeting
violated Section 8(a)(1) of the Act because he (a) interro-
gated an employee about the employee’s union activities and
protected concerted activities, and the union activities and
protected concerted activities of other employees; (b) solic-
ited employee complaints and grievances; and (c) asked an
employee to ascertain and disclose to Respondent the union
activities and protected concerted activities of other employ-
ees. Melder was obviously aware the employees had sought
help concerning their work related complaints from the
Dinwiddie people. By so doing, the employees were engaged
in protected concerted activity. Melder’s questions were di-
rected at ascertaining how many of Respondent’s employees
were engaged in such activity, and, by questioning Hannon
about the meeting, Melder was in fact interrogating him as
to whether he had been one of the attendees. Questioning of
this nature by a high-level company official in the privacy
of the Company’s office is coercive and violates Section
8(a)(1) of the Act.9 Similarly, the exacting of Hannon’s
promise to inform Melder if there were other union meetings
was an unlawful solicitation of an employee to act as a com-
pany spy on statutorily protected employee activity and thus
violated Section 8(a)(1) of the Act. I do not agree with Gen-
eral Counsel that an unlawful solicitation of complaints and
grievances took place. Hannon had previously had many
meetings with Melder wherein Melder asked him how things
were going, and had solicited Melder’s suggestions just like
he did in this meeting. This seems to have been a company
practice totally unconnected to the presence of protected em-
ployee union activity. Moreover, there is no indication
Melder expressly or impliedly promised to correct problems
raised by Hannon.
On April 8, Potts and a fellow employee placed fliers on
cars parked in the Respondent’s lot. The fliers read as fol-
lows:
ATTENTION!
ALL INGRAM ASSOCIATES
INTERESTED IN FORMING A UNION
PLEASE MEET SATURDAY, APRIL 10, 1993
AT 12:00 NOON
AT THE MCDONALDS ON ROUTE 1
DINWIDDIE, VIRGINIA
A company supervisor removed the fliers. Another employee
replaced them on April 9. Vice President of Operations
Pierce removed them.
On April 10, shortly before the appointed meeting time,
Potts and several other employees gathered at McDonald’s to
wait for the arrival of union representatives. The restaurant
is about a mile north of Respondent’s plant, which is located
on a street intersecting with Route 1. As the employees wait-
ed, Pierce drove by in a company vehicle. Potts first testified
that Pierce, coming from the south, drove by, turned around,
drove south, turned around somewhere and passed them
again, going north, turned off on a side street north of
McDonald’s and later again came by them going south. On
this passing, she called his name and Pierce waved. In sum,
she testified Pierce made two round trips. On cross-examina-
tion, she recalled Pierce made three round trips and waved
the second time he passed going south. She explains that the
three round trips was what she described in her pretrial affi-
davit as six passings because Pierce went by six times. Em-
ployees Dulcey McCadden and Charlene Miller testify they
saw Pierce drive by them going south, then saw him pass
going north and return going south. Both recall Potts waving
and Pierce waving back the last time he passed them going
south. This is consistent with Pott’s testimony Pierce waved
on his second southbound trip.
Pierce testified that he went to work at about 8:30 or 9
a.m. that Saturday, as he often does, to do paperwork. He
recalls that at about 12:30 p.m. or so he drove by McDon-
ald’s going north to a Safeway grocery where he bought
some chewing gum and a bottle of Snapple. Then he drove
back south, passing McDonald’s enroute to the plant. He
states he saw no employees at McDonald’s and did not
wave. His reason for going to the Safeway store was it was
lunchtime and he wanted a large bottle of Snapple, which
was not available at the plant.
Pierce acknowledges he made one round trip passing of
the McDonald’s restaurant. Potts claims he made three.
McCadden and Miller, both of whom were impressive and
believable witnesses, recollect he made 1–1/2 round trips.
Noting that the trips north were on the far side of the road
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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.’’
from McDonald’s, it is not improbable that McCadden and
Miller did not have their attention drawn to Pierce until he
passed by them going south on the McDonald’s side of the
road. The three women are credited that Pierce did in fact
wave at them as he passed going south. On the whole, I am
persuaded that there were two round trips, the first trip origi-
nating at the plant, going north past McDonald’s, returning
past McDonald’s going south, then another round trip com-
ing from the south and returning from the north at which
time Pierce waved as he passed. It may be that Pierce bought
a bottle of Snapple on one of the two round trips, but he cer-
tainly did not need two trips to do it. I do not believe that
was his purpose in driving past McDonald’s, and his version
of events is not credited. This factor, plus Respondent’s hos-
tility toward employee union activities as expressed by Vice
President Cook to Potts and Manager Melder’s particular in-
terest in knowing what employees were doing when they
gathered together, persuades me that Pierce was indeed inter-
ested in the identity of employees attending the union gather-
ing and sought to find out who and how many attendees
there were by engaging in surveillance of those employees
gathered in the McDonald’s lot. Surveillance of employees
holding a union meeting violates Section 8(a)(1) of the Act,
and Pierce did so here. Action Auto Stores, 298 NLRB 875,
887 (1990).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has violated Section 8(a)(1) of the Act
by the following conduct.
(a) By maintaining an unlawfully broad no-distribution
rule.
(b) By coercively interrogating employees concerning their
union and protected concerted activities and those of others.
(c) By threatening an employee with discharge if she en-
gaged in union activities.
(d) By soliciting an employee to report on the protected
concerted activities of others.
(e) By engaging in surveillance of a union meeting at-
tended by its employees.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Ingram Book Company, a Division of
Ingram Industries, Inc., Petersburg, Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an unlawfully broad no-distribution rule.
(b) Interrogating employees concerning their union and
protected concerted activities and those of others.
(c) Threatening employees with discharge if they engage
in union activities.
(d) Soliciting employees to report on the protected con-
certed activities of other employees.
(e) Engaging in surveillance of employee union meetings.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove the no-distribution rule from its Ingram Asso-
ciates Handbook and advise its employees in writing that this
has been done.
(b) Post at its place of business in Petersburg, Virginia,
copies of the attached notice marked ‘‘Appendix.’’11 Copies
of notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT maintain unlawfully broad no-distribution
rules.
WE WILL NOT threaten employees with discharge if they
engage in union activities.
WE WILL NOT coercively interrogate employees concerning
their union and protected concerted activities or those of oth-
ers.
WE WILL NOT engage in surveillance of employee union
activities.
WE WILL NOT solicit employees to report on the protected
concerted activities of other employees.
519INGRAM BOOK CO.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind and remove the following language from
item 9. Solicitation appearing at page 22 of the Ingram Asso-
ciates Handbook, and advise you in writing that this has been
done and that the following no-distribution rule is no longer
in effect:
Associates are not permitted to distribute literature
such as brochures, booklets, pamphlets, or flyers at any
time except during Company-authorized fund-raising
drives.
INGRAM BOOK COMPANY, A DIVISION OF
INGRAM INDUSTRIES, INC.