Miller Group

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1235 (N.L.R.B. 1993)

1235
310 NLRB No. 213
MILLER GROUP
1 This designation reflects the Respondent’s admission in its an-
swer to the March 31, 1992 amendments to the complaint. The Re-
spondent operates three divisions in Pennsylvania—the Miller Fab-
rics and H. L. Miller divisions are in the Independence plant in
Schuylkill Haven, and the Pottsville Bleaching and Dyeing division
is in Port Carbon.
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.
In addition, the Respondent asserts that some of the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the contentions are without merit.
3 We agree with the judge that the evidence shows that the Re-
spondent restricted Smith’s use of the Blue Mountain breakroom and
the maintenance department employees’ use of this room for reasons
proscribed by the Act. We also note that the restrictions imposed by
the Respondent circumscribed the activity of a leading union adher-
ent. Smith had testified on behalf of the Union at the representation
hearing and was a member of the Union’s in-plant organizing com-
mittee. The restrictions placed on Smith might be viewed by the
other employees at the two plants as punishment of Smith because
he had openly engaged in union activities. These employees might
thereby be discouraged from extending further support to the Union.
These circumstances provide another reason for finding that the Re-
spondent’s conduct with respect to Smith violated Sec. 8(a)(3) of the
Act. See Sands Motel, 280 NLRB 132, 140 (1986).
In agreeing with his colleagues’ adoption of the judge’s finding
that the Respondent’s directing employee Smith to cease using the
knitting department breakroom violated Sec. 8(a)(3) of the Act,
Member Devaney finds it unnecessary to rely on the additional ra-
tionale stated above.
4 We correct the judge’s inadvertent errors in (1) failing to include
the requirement that the Respondent affirmatively rescind its rule
prohibiting plant maintenance employees full access to the Blue
Mountain breakroom during authorized breaks; and (2) designating
the incorrect name for the Union Local in his Order and notice.
We find merit in the General Counsel’s exception to the judge’s
failure to require that the Respondent post notices at both its Schuyl-
kill Haven and Port Carbon facilities. As noted by the judge, this
Respondent has a recidivist history of engaging in unfair labor prac-
tices. See cases cited as Pottsville Bleaching Co., 275 NLRB 1236
(1985), 277 NLRB 988 (1985), 283 NLRB 359 (1987), 301 NLRB
1095 (1991), and 303 NLRB 186 (1991). These cases persuade us
that the Respondent has engaged in ‘‘a clear pattern or practice of
unlawful conduct.’’ John J. Hudson, Inc., 275 NLRB 874 fn. 2
(1985). Moreover, the plants are owned and controlled by the same
individuals who set labor relations policies at both locations. That
day-to-day labor relations operate at the plant level, as the Respond-
ent contends, is therefore not controlling. We also note that subse-
quent to the events at issue here, the Regional Director, in a related
representation case, found appropriate a two plant unit, Schuylkill
Haven and Port Carbon, as sought by the Union. In these cir-
cumstances, we find notice posting at both locations essential to ef-
fectuate the purposes of the Act.
5 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.’’
The Miller Group, Inc.1 and Teamsters Union Local
115, affiliated with the International Brother-
hood of Teamsters, AFL–CIO. Case 4–CA–
20129
April 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 12, 1992, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent and the General Counsel filed exceptions
and supporting briefs and the Respondent filed an an-
swering brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified and set forth in full below.4
ORDER
The National Labor Relations Board orders that the
Respondent, The Miller Group, Inc., Schuylkill Haven,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Instituting or implementing any rule or regula-
tion that prohibits plant maintenance department em-
ployees full access to the Blue Mountain breakroom
during authorized breaks.
(b) Discouraging membership in or activities on be-
half of Teamsters Union Local 115, affiliated with the
International Brotherhood of Teamsters, AFL–CIO, or
any other labor organization, by preventing or prohib-
iting plant maintenance employees full access to the
Blue Mountain breakroom during authorized breaks.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the policies of the Act.
(a) Rescind any rule or regulation which prohibits
plant maintenance department employees full access to
the Blue Mountain breakroom during authorized
breaks.
(b) Post at the Respondent’s Schuylkill Haven and
Port Carbon, Pennsylvania places of business copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The principal docket entries in this case are as follows:
Charge filed by Teamsters Union Local 115, affiliated with the
International Brotherhood of Teamsters, AFL–CIO (Union) against
the Respondent on October 7, 1991, amended on December 16,
1991, and amended again on March 25, 1992; complaint issued
against the Respondent by the Regional Director, Region 4, on De-
cember 24, 1991, amended on March 31, 1992, and corrected on
April 2, 1992; Respondent’s answer filed on January 8, 1992; hear-
ing held in Pottsville, Pennslyvania, on April 23, 1992; briefs filed
with me by the General Counsel and the Respondent on or before
June 18, 1992.
2 Respondent admits, and I find, that it is a division of The Miller
Group, Inc., a Pennsylvania corporation, which has an office and
place of business in Schuylkill Haven, Pennsylvania, where it is en-
gaged in the production of fabrics. During the preceding year the
Respondent, in the course and conduct of its business, sold and
shipped from its Schuylkill Haven, Pennsylvania plant directly to
points and places outside the Commonwealth of Pennsylvania goods
and materials valued in excess of $50,000. Accordingly, the Re-
spondent is an employer engaged in commerce within the meaning
of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
spondent to ensure that the notices are not altered, de-
faced, 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 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 institute or implement any rule or
regulation which prohibits plant maintenance depart-
ment employees full access to the Blue Mountain
breakroom during authorized breaks.
WE WILL NOT discourage membership in or activi-
ties on behalf of Teamsters Union Local 115, affiliated
with the International Brotherhood of Teamsters, AFL–
CIO, or any other labor organization, by preventing or
prohibiting plant maintenance employees full access to
the Blue Mountain breakroom during authorized
breaks.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind any rule or regulation which pro-
hibits plant maintenance department employees full ac-
cess to the Blue Mountain breakroom during author-
ized breaks.
THE MILLER GROUP, INC.
Timothy J. Brown, Esq. and Linda R. Carlozzi, Esq., for the
General Counsel.
Barry R. Elson, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
Norton H. Brainard III, of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
A. Statement of the Case
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing on April 23, 1992, before me at
Pottsville, Pennsylvania, upon an unfair labor practice com-
plaint1 issued by the Regional Director of the Board’s Re-
gion 4, which alleges that Respondent Miller Fabrics, a divi-
sion of The Miller Group, Inc.,2 violated Section 8(a)(1) and
(3) of the Act. More particularly, the complaint alleges that
the Respondent forbade union supporter Ronald Smith from
taking his lunch and other breaks in a section of the Re-
spondent’s Schuylkill Haven, Pennsylvania plant known as
the Blue Mountain breakroom, that it did so for discrimina-
tory reasons, and that it promulgated a general rule for dis-
criminatory purposes forbidding maintenance employees
from taking lunch and other breaks in that area Respondent
admits that it took the actions in question but avers that it
did so because of crowding in the breakroom, not for
antiunion reasons. On these contentions the issues were
joined.
B. The Unfair Labor Practices Alleged
The Regional Director for the Board’s Region 4 found in
an earlier representation case that The Miller Group, Inc., is
a Pennsylvania corporation which maintains its offices at
Schuylkill Haven, Pennsylvania, where its Miller Fabrics di-
vision, the division directly involved in this case, maintains
a dyeing, knitting, and finishing operation. The Respondent’s
Pottsville Bleaching and Dyeing Company division is located
in another plant about 7 miles away in the town of Port Car-
bon. A third division is also found at Schuylkill Haven, a
plant which is sometimes referred to as the Independence or
‘‘Indy’’ plant. The Miller Group, Inc., is owned by John Mil-
ler. Both Miller Fabrics and Pottsville divisions have the
same president, Wesley Edwards, and the same vice presi-
dent of human resources, Richard Hemphill. In his decision
issued on March 10, 1992, the Regional Director concluded
that the Pottsville and Miller Fabrics divisions were a single
bargaining unit and directed that an election be conducted in
that unit. (Case 4–RC–17641.) Involved in that decision was
1237MILLER GROUP
3 The name Blue Mountain is derived from the fact that, in 1987,
the Respondent moved knitters, knitting mechanics, and greige ware-
housemen from Blue Mountain Fabrics in Orwigsburg, Pennsylvania,
to the Independence plant.
4 At the outset of the campaign, Union-Secretary Treasurer John
P. Morris wrote a letter to the Respondent’s president, Wesley R.
Edwards, informing him that Smith and eight other named employ-
ees were members of the Union’s in-plant organizing committee.
a finding that some 70 knitters and related employees, em-
ployed in the Miller Fabrics division and known informally
as Blue Mountain employees, were a part of this unit.3 I in-
corporate all of those findings in this decision.
Near the knitting department—the Blue Mountain work
area—is the maintenance department. It is housed in a sepa-
rate building across a driveway from the building where the
Blue Mountain work area is located. The maintenance de-
partment is located about 50 yards from the knitting room
and its breakroom. Both areas are at one end of a large
building, some 500 yards long and 50–75 yards wide, where
several hundred other employees also work.
The Independence plant operates 24 hours a day, 7 days
a week. All of the employees involved in this dispute work
3 consecutive 12-hour shifts, either during the day or during
the evening, as well as every other Sunday. Maintenance em-
ployees follow the same work pattern as do production em-
ployees. The total complement of each group is divided into
four shifts to accommodate this scheduling.
There are three breakrooms in this large industrial build-
ing. In the middle of the building, near the dye room, is the
main lunchroom. The location at issue in this case is imme-
diately adjacent to the knitting room. The record also con-
tains a reference to a small breakroom located in the building
where the maintenance department has its office and shop.
All of these breakrooms have chairs, tables, refrigerators, and
microwave machines. The main lunchroom and the Blue
Mountain or knitting department breakroom also have an as-
sortment of vending machines for the use of employees.
The Blue Mountain breakroom was built in 1987 when the
knitting function was moved to the Independence plant. It is
normally frequented by knitters, knitting machine mainte-
nance personnel (as distinguished from plant maintenance
men), and employees in the greige warehouse adjacent to the
knitting room. Some employees in this department opt to
take their breaks in other parts of the plant, or outside the
building where they can smoke, since a no-smoking rule is
observed in both of the breakrooms in the plant building. A
majority on each shift take their three daily breaks at the
same time, although knitters, who are paid on a piece-work
basis, sometimes work through their breaks and do not take
advantage of the authorized time off. Plant Maintenance em-
ployees, such as Ronald Smith, work throughout the plant,
wherever a need for their services arises, and sometimes take
their breaks where they are performing work rather than in
any designated breakroom.
In April 1991, the Union began to organize both the Inde-
pendence and Port Carbon plants. A representation petition
was filed on June 5, 1991. A hearing was held on several
days in July 1991, during which Ronald Smith testified on
two occasions on behalf of the Union. Smith is an electrician
on the ‘‘A’’ shift and is employed in the plant maintenance
department. The Respondent admits that it was well aware
of the fact that Smith was a prounion activist.4 As noted
above, the inclusion of the knitting department in the bar-
gaining unit was one of the matters at issue at that hearing.
The events which took place in this case occurred while the
representation case was pending before the Regional Director
awaiting a decision.
Sometime in mid-September 1991 Martin Horne, knitting
plant manager, saw Smith eating with others during
breaktime in the Blue Mountain breakroom. A week or two
later, he called Gary O’Hara, the director of human resources
for the Respondent, and asked O’Hara whether it was his un-
derstanding that the Blue Mountain breakroom was reserved
exclusively for knitting department personnel. O’Hara con-
firmed Horne’s understanding, whereupon Horne phoned
Carl Brown, the maintenance supervisor on the ‘‘A’’ shift,
and instructed Brown to instruct Smith not to take his breaks
any longer in the Blue Mountain breakroom. During the
morning of September 25, while Smith was performing
maintenance work near the dye tubs in the dye house,
Brown, along with maintenance man Ed White, approached
Smith and told him that he was no longer permitted to take
his breaks in the Blue Mountain breakroom. At that time,
Brown gave Smith no reason for the instruction. Smith asked
for a reason and Brown simply told him that he was issuing
the instruction because he was told to do so. I credit Smith’s
testimony that, a few minutes later, Horne passed the area
where Smith was working and Smith asked him ‘‘What’s
this about not eating in the Blue Mountain break room?’’
Horne replied, ‘‘Ron, you never ate there before. We all
know why you are eating there now, and it’s for one reason
and one reason only.’’
Later on in the day, Smith was paged by Brown over the
loudspeaker and told to report to the maintenance shop.
When he arrived, Brown and Edward Shamanski, the cor-
porate director of maintenance, were present. Shamanski re-
peated the earlier directive, adding that the Blue Mountain
breakroom was too small to accommodate both Smith and
the others who ate there. Shamanski told Smith that, since
he was an electrician, the Company wanted him to eat in the
maintenance department break area so his supervisors would
know where he was in the event of an emergency.
Shamanski added, ‘‘How would you like it if the rest of the
plant ate at your break table?’’ He then asked Smith if the
latter had any questions. Smith said no.
At noon Smith took his lunchbreak in the maintenance de-
partment breakroom. Two or three other maintenance men
joined him. At that time Brown told all of them that the
Company did not want any of them to eat in the Blue Moun-
tain breakroom because it was too small to accommodate
them. Later on, during the evening shift, the same instruction
was given by Brown to evening shift maintenance employ-
ees. I credit the testimony of evening shift maintenance man
Edward Ginther that Brown told these individuals, ‘‘We
don’t want you over there. You don’t belong there. You may
buy food there but you must eat in the maintenance shop
only.’’ As he was leaving the area, Brown made another
statement to Ginther personally in which he stated, in sub-
stance, that ‘‘you understand what is going on and why we
don’t want you eating in there. They don’t want you talking
to the people in Blue Mountain about what is going on with
the union situation.’’ Brown’s instruction was later clarified
so that maintenance department employees were informed
that they could eat elsewhere in the plant, other than in the
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maintenance department breakroom, so long as they did not
use the Blue Mountain breakroom for anything but the pur-
chase of items from the vending machines. Since that time,
maintenance department personnel have continued to make
purchases from time to time from the Blue Mountain
breakroom vending machines but they have not taken their
breaks at that location.
C. Analysis and Conclusions
This is not the first case in which this Company has been
brought before the Board to respond to an unfair labor prac-
tice allegation. In 1985 in Pottsville Bleaching & Dyeing
Co., 275 NLRB 1236, the Board found the Respondent guilty
of unlawfully discharging Joseph Sullivan, a union supporter
with 19 years of service, who had been the union observer
in a representation election. In 1985, the same company was
found guilty of unfair labor practices by making several in-
timidating statements to its employees concerning union mat-
ters. In 1987, the Respondent was found guilty of unlawfully
discharging Ronald Downey, who had been a union steward,
a union observer at an election, and a witness in two pre-
vious unfair labor practice proceedings. 283 NLRB 359
(1987). In 1991, the Respondent herein was found guilty of
making unlawful interrogations and threats concerning union
activities and guilty of engaging in objectionable conduct
which affected the results of a representation election. 303
NLRB 186 (1991). These cases all arose at the Port Carbon
plant, some 7 miles from the site of the present incidents.
Both plants are part of the same bargaining unit and are
geographically quite close. They are owned and controlled by
the same individuals who set labor relations policies at both
locations. In light of these facts, the events which took place
in this case at the Independence plant should be evaluated
against the background of antiunion hostility and illegal con-
duct in which this Respondent has repeatedly engaged.
A great deal of testimony was devoted to the question of
whether, before September 25, 1991, plant maintenance men
took their breaks in the Blue Mountain breakroom. I credit
Smith’s uncontradicted testimony that he had done so on
several occasions and I credit Ginther’s uncontradicted testi-
mony that he had done likewise. Even though the practice
might not have been widespread, it is certain that, before the
incidents occurred which gave rise to this case, there was no
written or oral restriction or prohibition against maintenance
men taking their breaks at this location. At present, there is
no written or oral restriction or prohibition on anyone else
doing so either, although most employees prefer to frequent
a larger lunchroom in the middle of the plant building be-
cause it is closer to their workstations.
The reason asserted by Horne in directing Smith to refrain
from using the Blue Mountain breakroom was that his pres-
ence in the area caused overcrowding. Even though several
employees testified for the Respondent as to the size of the
room and the extent of the facilities available there, it is also
clear that no employee ever complained about the crowding
of the breakroom to any member of management. It is also
clear that the asserted reason or reasons for the change in the
Respondent’s policy did not arise until the representation pe-
tition, filed by the Union, was being litigated before the Re-
gional Office. At issue in that case was whether or not knit-
ting department employees would be allowed to vote in the
forthcoming election. Leading the union effort before the
Board was Ronald Smith, a plant maintenance man who tes-
tified twice at the representation case hearing. It was his
presence in the breakroom, discussing assertedly ‘‘unknown
topics’’ with knitting department employees in an animated
fashion, that prompted Horne to act.
Initially, the instruction to refrain from using the
breakroom for breaks was given specifically to Smith and to
no one else. When Smith asked Horne for an explanation, he
was told, in essence, that it was for ‘‘one reason and one rea-
son only.’’ It is small inference to draw that Horne was re-
ferring to Smith’s union activism. By restricting Smith from
using the Blue Mountain breakroom, with, of course the ex-
ception that he might enter the premises to buy items from
the vending machines, and by doing so in order to prevent
Smith from talking union with knitting department employ-
ees who gathered there, the Respondent discriminated against
Smith in the tenure of his employment for prohibited reasons
and thereby violated Section 8(a)(1) and (3) of the Act.
In order to provide a cover story for its action in keeping
Smith out of the breakroom, the Respondent broadened this
prohibition into an oral rule applicable to all maintenance de-
partment employees. At their own lunchbreaks, Maintenance
Supervisor Brown told both day-shift and night-shift super-
visors that they could no longer use the breakroom, with the
one stated exception. Various additional excuses were prof-
fered on this occasion—the room as too small, maintenance
men were needed in emergencies, and the Respondent want-
ed them to spend their leisure moments in the maintenance
department’s own breakroom so they would be available.
This makeweight argument ignored the fact that the plant is
equipped with a loudspeaker system which permits mainte-
nance personnel or anyone else to be summoned immediately
from any part of the plant, including the Blue Mountain
breakroom. It also ignores Smith’s credited testimony that, in
5 years of employment at the plant, he has never been sum-
moned to respond to an emergency. Brown told Ginther that
the reason for the new rule was to put the damper on union
activities. This explanation is the credible one. Accordingly,
by instituting a rule preventing maintenance men from taking
their breaks in the Blue Mountain breakroom in order to pre-
vent them from engaging in union activities, the Respondent
herein violated Section 8(a)(1) of the Act. General Motors
Corp., 254 NLRB 1129 (1981); Libby-Owens Ford Co., 285
NLRB 673 (1987).
CONCLUSIONS OF LAW
1. Respondent Miller Fabrics, a division of The Miller
Group, Inc., is now and at all times material herein has been
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Teamsters Union Local 115, affiliated with the Inter-
national Brotherhood of Teamsters, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By specifically directing an employee to cease using a
company breakroom in order to discourage his union activi-
ties, the Respondent herein violated Section 8(a)(3) of the
Act.
4. By the acts and conduct set forth above in Conclusion
of Law 3; and by instituting a general rule forbidding a cer-
tain group of employees from using a company breakroom
in order to interfere with their union activities, the Respond-
ent herein violated Section 8(a)(1) of the Act.
1239MILLER GROUP
5. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Since this Respondent has, in previous
cases as well as in this case, demonstrated an ongoing dis-
position to violate the rights of its employees, I will rec-
ommend to the Board a so-called broad 8(a)(1) remedy de-
signed to suppress any and all violations of that section of
the Act. Hickmott Foods, 242 NLRB 1357 (1979). The rec-
ommended Order will also require the Respondent to post the
usual notice, informing employees of their rights and of the
results in this case.
[Recommended Order omitted from publication.]