Stanadyne Automotive Corp. and International Union, United Automobile, Aerospace & Agricultural
Implement Workers of
August 24, 2005
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On November 9, 2001, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.
The National Labor Relations 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,1 and conclusions only to the extent consistent with this Decision and Order.2
Pursuant to an election held on June 29, 2000,3 a unit of approximately 650 production
and maintenance employees at the Windsor, Connecticut facility of Stanadyne
Automotive Corporation (the Respondent) voted against representation by the
International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, AFL–CIO (the Union).
The vote was 219 for the
i. alleged
no-solicitation rule
We affirm the judge’s finding that the Respondent violated Section 8(a)(1) by orally implementing a rule prohibiting employees from discussing the Union while on working time.
A. Facts
Before the
During the union campaign, the Respondent’s attorneys provided
the Company’s supervisors with training concerning permissible and
impermissible preelection conduct, such as avoiding threats of reprisals or promises
of benefits. The training also addressed
when and where employees could engage in union activity. The factual disputes in this case center not
on what was conveyed to supervisors, but what the supervisors told employees. The General Counsel’s witnesses testified
that some supervisors told employees they could not talk about the
No employees were formally disciplined for engaging in any prounion or antiunion discussions or activity during worktime at any point during the campaign. However, Supervisor Gary Beresford admitted that he reminded both prounion and antiunion employees of the rule that they should work when they are supposed to be working. Manager Ron Binkus testified that he responded to a prounion employee’s complaint about a vocal “pro-company” employee by telling the “pro-company” employee that she could not engage in “pro-company” activities during work hours. The Respondent’s witnesses testified that employees’ talking during the election campaign did not interfere with production.
The judge found that the Respondent’s conduct described above violated Section 8(a)(1) because the no-solicitation instructions, which were given only after the organizing campaign began, were discriminatorily limited to union solicitations. The instructions, he found, were not consistent with any past practice or justified by any legitimate business consideration. Furthermore, the judge noted that all other talking within the workplace and during working hours continued to be permitted.
The Respondent excepts, arguing: (1) the judge erred in crediting testimony that supervisors told employees not to discuss the Union during working time; (2) the rule that employees were supposed to be working during working time was not a change from previous rules and did not restrict conversation so long as employees were working; (3) the rule was not applied in a discriminatory manner; and (4) the Respondent did not discipline any employee, whether for or against the Union, for violating the rule.
B. Analysis and Conclusion
Section 8(a)(1) prohibits employers from interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7. The Board recently reiterated:
[A]n employer may forbid employees from talking about a union during periods when the employees are supposed to be actively working, if that prohibition also extends to other subjects not associated or connected with their work tasks. However, an employer violates the Act when employees are forbidden to discuss unionization, but are free to discuss other subjects unrelated to work, particularly when the prohibition is announced or enforced only in response to specific union activity in an organizational campaign.
Jensen Enterprises, 339
As the judge noted, had the Respondent maintained a rule
restricting all talking or solicitation during working time that was uniformly
enforced and not promulgated in response to the Union campaign, the rule would
have been presumptively valid. Jensen
Enterprises, 339
ii. alleged
threat of reprisal for “harassing”
fellow employees
We reverse the judge’s finding that the Respondent violated Section 8(a)(1) by issuing a statement prohibiting “harassment.”
A. Facts
During a June 6 campaign meeting with employees, the Respondent’s President and CEO Bill Gurley stated:
[I]t has come to my attention that some union supporters,
not all, but some, are harassing fellow employees. You can disagree with the Company position;
you can be for the
The judge found that this statement was a threat of reprisal in violation of Section 8(a)(1) because employees could reasonably fear, based on the statement, that they would be disciplined for engaging in protected activity. The Respondent excepts, arguing that Gurley’s statement was a legitimate effort to enforce a company policy against harassment; the reference to “any type” of harassment indicates that it would not distinguish between harassment by prounion or “pro-company” employees; and the term “harassment” incorporates “threats” or “intimidation,” which the Board has held to be sufficiently specific that an employer can lawfully prohibit such conduct.
B. Analysis and Conclusion
The Board recently held, in determining whether an
employer’s maintenance of a work rule reasonably tends to chill employees in
the exercise of Section 7 rights, that it will give the rule a reasonable reading
and refrain from reading particular phrases in isolation. Lutheran
Heritage Village-Livonia, 343
[T]he violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
Applying this standard to Gurley’s statement prohibiting
harassment, we find that the statement does not explicitly restrict protected
activity. Under the 3-factor test described
above, we also find that employees would not reasonably construe Gurley’s
statement to prohibit Section 7 activity, nor was the statement promulgated in
response to union activity. Rather,
Gurley’s statement addressed harassing conduct that is not protected by Section
7, in response to unsolicited reports of improper behavior. During the organizing campaign, the Respondent
encountered vandalism in the parking lots, graffiti on restroom walls (such as
the written message “Kill Gurley”), and an incident involving an employee who
called the police to report another employee who, while distributing union
literature, allegedly grabbed her arm.
In view of the various State and Federal laws that place affirmative obligations
upon employers to address workplace harassment, an employer reasonably would
react to reports of harassment by informing employees that such conduct will
not be tolerated. Reasonable employees,
however, would not assume that a statement prohibiting harassment is a
restriction on Section 7 activity, particularly where, as here, the Respondent
explicitly indicated that the employees were free to support the
Our colleague says that Gurley’s statement was “in response to union activity.” However, not all union activity is protected. As shown above, the statement here was in response to reports of unprotected union activity.
Accordingly, we reverse the judge and find that Gurley’s statement did not violate Section 8(a)(1).
iii. alleged
threats of plant closure,
inevitability of strikes, and job loss
We have carefully reviewed the record and find that the Employer’s statements to employees at meetings on June 21, did not exceed the bounds of permissible campaign speech. Therefore, we reverse the judge’s finding that the Respondent violated Section 8(a)(1) by its conduct at these meetings.
A. Facts
The Respondent held approximately seven meetings with employees
of various shifts on June 21, each involving the same presentation by Gurley
and Managers Art Caruso and Ron Binkus.
As in prior campaign meetings, the speakers primarily adhered to written
scripts, which are part of the record.
The speakers discussed potential consequences of strikes, plant
closures, and strike violence, including violence and plant closures that
occurred during strikes by the
Gurley, in his introduction to the meeting, referred to
his promise to give employees as much information as he could to help them in
deciding whether they wanted a union. He
emphasized that the
However, if after negotiating we were not willing to accept the Union’s proposals or the Union were not willing to accept the company’s proposals, then the Union only has two options that I know of: (1) It can accept the company’s offer, or (2) It can call you out on strike in order to try to get Stanadyne to agree to its proposals. (Emphasis in original script).
Gurley then introduced Caruso and Binkus as employees with 35 years and 32 years of service, respectively, who would speak of their own personal experiences.
Caruso explained the potential ramifications for employees
in the event of a strike, including that pay would stop, striking employees
would be ineligible for unemployment compensation, the company would be
entitled to hire permanent replacements during an economic strike, and that the
company could legally cease health insurance contributions during the
strike. Caruso then referred to a claim
by the
Binkus spoke next and described his work history with
Stanadyne, contrasting his experience at union and nonunion facilities. He offered personal examples of the
The action we take as individuals does, at times, result in something completely unplanned. Let’s not let any unplanned action take place here. Violence, threats, intimidation, and a death are not things that happen just on TV or something you read somewhere about another company. They happened at UAW locations at former Stanadyne facilities. Of my 32 years with Stanadyne, the last 10 have been the best, not that the current job is easy, but the environment we are in is so much better. You can keep the environment here union free. Do not place yourself in a violent environment, vote “no.” (Emphasis in original script.)
Caruso then spoke again, stating,
I agree with Ron’s comments. No one, union or management, want [sic] to see violence occur, but when you place yourself in that type of environment, people do things that they normally would not. I am not saying that those things will happen in the future, but in a union environment, those things have happened.
He cited values that have contributed to the Company’s
success, stating that he witnessed such values being sacrificed when the
Gurley was the last speaker. He noted that although the message was not pleasant, employees must be aware of the facts in deciding how to vote. Gurley stated,
I want to be very clear on this point. The discussions today are in no way intended
to be a prediction of future events. It
is impossible for anyone to say what will happen if the
He conveyed that, for the first time in his managerial career, a personal threat was made against him, as well as against a few employees, during the campaign, adding, “Union members also have means to threaten and coerce fellow members. Please be careful of the path you take, you may not like where it ends.” (Emphasis in original script.) After reminding employees that the election would be confidential, unlike the oral strike vote discussed by Binkus, Gurley concluded the meeting with a question and answer session.
At the conclusion of the questions, Gurley unveiled a large sign displaying seven photographs of closed plants. A heading at the top of the sign read, “These are just a few examples of plants where the UAW used to represent employees.” (Emphasis in original.) Across each photograph was the word “CLOSED” in large red block letters, with the date of closing below each photograph. Below the photographs, the sign read, “Is this what the UAW calls job security?” and “VOTE NO!” at the bottom. Copies of the sign were also displayed throughout the plant during the week before the election.6
Gurley testified at the hearing that he did not know the
specific reasons for the closing of several of the plants depicted on the sign
or whether the closures had anything to do with the
B. Analysis and Conclusion
The Supreme Court described the balance between employer
free speech rights as codified by Section 8(c) and employees’ Section 7 rights
in
[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. [Citation omitted]. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.
Subsequent cases applying this standard involve
fact-intensive analyses of the circumstances involved. In EDP Medical Computer Systems, Inc.,
284
Applying this precedent, we find, contrary to the judge,
that the Respondent’s conduct during the June 21 meetings was lawful. By conveying events that had already
occurred, as well as supplying the perspective of employees who had experienced
some of those events, the speeches and the “closed” sign merely attempted to
inform employees of the potential negative effects of their upcoming vote. As stated above, an employer’s right to
communicate its “general views about unionism” or “specific views about a
particular union,” absent threats or promises, is well established. Gissel, 395
Further, the speakers repeatedly made clear that they were
not making threats or predictions about the future, but rather, presenting
“facts and recollections about actual events.”
By providing “concrete example[s] of a negative outcome for employees
who were represented by the same union that seeks to represent” the Respondent’s
employees, the Respondent “made no prediction at all.”
For this reason, our colleague’s complaint that the Respondent’s
speakers did not establish an objective basis for their assertions that the
To the extent that the Respondent’s message may be
construed as a “prediction” of the effects of unionization, in spite of its
assurances to the contrary, we find that its statements were “carefully phrased
on the basis of objective fact to convey [the Respondent’s] belief as to demonstrably
probable consequences beyond [its] control.”
Gissel, 395
Our colleague cites Board decisions in AP Automotive Systems, Inc., 333
Similarly, the facts in this case are distinguishable from
those in Quamco, Inc., 325
For these reasons, we find, contrary to the judge, that the Respondent’s conduct during the June 21 meetings with employees did not violate Section 8(a)(1).
iv.
announcement of improved pension benefits
We reverse the judge’s finding that the Respondent violated Section 8(a)(1) by announcing an improvement in pension benefits after the filing of the petition and before the election.
A. Facts
About 1 to 2 weeks before the election, the Respondent posted a notice to employees announcing an increase in their monthly pension benefit, from $19 to $21, effective July 1. The evidence indicates that the Respondent reviewed employee compensation and benefits twice a year, using an industry survey of compensation and benefits called the “CBIA survey,” in addition to other available data. The effective date of changes in benefits and/or wages, if any, was typically January 1 and/or July 1. Such changes were typically communicated to employees through a notice posted on a bulletin board, generally 1 to 2 weeks before the effective date. Periodic increases to the pension benefits had been given in various years since 1959 in either January or July, including the most recent increase prior to the one at issue, on July 1, 1999 (from $18 to $19).
The Respondent’s witnesses testified that in 1996, the Respondent made a decision to incrementally increase the pension benefit until it reached the highest category in the CBIA survey, which was $21 at the time of the benefit increase at issue. The Respondent’s witnesses testified that the increases were necessary to become competitive in recruiting and retaining talented employees. Compensation and benefits manager, Richard Lurie, testified that the plan to increase the pension benefit over time was an agreement in theory, but not a commitment or guarantee, due to the uncertainty regarding future business conditions; thus, no writing exists that describes this plan. Employees were not given an explanation of the reason for the July 2000 pension increase or any advance notice of it; however, the evidence indicates that this is consistent with the usual practice. The $2 increase in pension benefits was implemented at this facility, as well as the Respondent’s other facilities, in July 2000.
The judge found that “There may have been some type of
plan made in 1996, to incrementally raise pension benefits,” but the Respondent
did not specifically contemplate a July 2000 increase in 1996. The judge also found that the Respondent
failed to show that the July 2000 increase was part of a previously established
pattern. He concluded that the
announcement of the increased benefit, shortly before the election, violated Section
8(a)(1) because it was intended to dissuade employees from voting for the
B. Analysis and Conclusion
“Under settled Board policy, a grant or promise of
benefits during the critical preelection period will be considered unlawful
unless the employer comes forward with an explanation, other than the pending
election, for the timing of such action.”
Honolulu Sporting Goods Co., 239
The Respondent has successfully rebutted any inference
that it was unlawfully motivated by intent to influence the outcome of the
election when it announced a $2-pension benefit increase. The evidence demonstrates that the Respondent
followed its usual procedures with regard to both the decision to grant the
pension benefit increase and the timing of its announcement. Contrary to the judge, we find that the fact
that increases were not given every year does not undermine the Respondent’s
argument. It is clear that benefits were
reviewed at the same time each year, and that the pension benefit was increased
in some years, but not others, depending on the results of the benefits
review. That is precisely what the
Respondent did in July 2000, just as it had the year before, consistent with
its obligation to proceed as if the
Moreover, we disagree with the judge’s finding that the Respondent’s argument is undermined by the fact that it did not contemplate the specific July 2000 increase of $2 at the time it developed its general plan in 1996 to incrementally increase the pension benefit. As Lurie testified, the constraints of future business uncertainties precluded the Respondent’s managers from making a predetermined commitment to specific increases in specific years. What is clear is that the Respondent had a legitimate business objective in planning to achieve parity with other employers’ pension benefits for the purpose of remaining competitive in recruitment and retention of talented employees. Unlike the judge, we will not second-guess the Respondent’s legitimate business goal, regardless of whether its plan set forth specific amounts or a general objective. Similarly, the absence of a document memorializing the plan does not prove that the increase was inconsistent with the Respondent’s prior practice. Finally, the lack of advance notice or explanation of the increase to employees is not suspect, as they generally were not given such information in the past. For these reasons, we find, contrary to the judge, that the Respondent’s conduct regarding the July 2000 pension benefit increase did not violate Section 8(a)(1).
ORDER
The National Labor Relations Board orders that the Respondent,
Stanadyne Automotive Corp.,
1. Cease and desist from
(a) Maintaining and enforcing its no-solicitation/no-distribution rule selectively and disparately by prohibiting union solicitations and distributions and by prohibiting employees from speaking about International Union, Automobile, Aerospace & Agricultural Implement Workers of America, AFL–CIO (the Union) during working time while not prohibiting conversations about nonunion topics.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind its unlawful no-solicitation/no-distribution rules.
(b) Within 14 days after service by the Region, post at
its facility in
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Member Liebman, dissenting in part.
The majority wrongly reverses two 8(a)(1) violations found
by the judge.1 First, the majority finds that a statement by
the Respondent’s president threatening employees with reprisal for “harassing”
other employees was lawful, despite the fact that the statement was made in
direct response to union activity and would reasonably tend to chill such
activity. Second, the majority sees no
harm in a series of statements by the Respondent’s top officials that
threatened employees that choosing the
A. Threat of Reprisals for Harassment
1. Facts
Respondent President William Gurley made a speech to the employees in which he told them, inter alia, that “some union supporters” were “harassing” fellow employees, that “no one should be harassed,” and that “harassment of any type is not tolerated by this company and will be dealt with.”
2. Analysis and conclusions
Relying on Lutheran Heritage Village-Livonia,2 in which Member Walsh and I dissented, the majority finds that Gurley’s prohibition against harassment was not promulgated in response to union activity and that employees would not reasonably construe Gurley’s words as reaching Section 7 protected activity. I disagree with both of these findings.
First, Gurley told the employees “it has come to my attention that some union supporters, not all, but some, are harassing fellow employees.” Thus, Gurley’s prohibition was expressly promulgated in direct response to union activity and violates Section 8(a)(1) under Lutheran Heritage for that reason alone.
Second, Gurley’s prohibition against harassment states that “no one should be harassed,” and it prohibits “[h]arassment of any type.” This is essentially the same as the rule against “[h]arassment of other employees, supervisors and any other individuals in any way” in Lutheran Heritage, which I would have found unlawful. Gurley did not describe what he meant by harassment, and instead presented the employees with only “a very broad, vague, and highly subjective notion of ‘harassment’ that places the [prohibition] in statutory jeopardy.”3 As in Lutheran Heritage, nothing in the phrasing of Gurley’s prohibition limits its breadth; just the opposite. It would thus be reasonable for employees to understand Gurley’s prohibition as reaching protected—but unwelcome—union solicitation. Such a prohibition is unlawful.4
My colleagues say that Gurley’s prohibition was lawful
because in referring to “union supporters . . . harassing fellow employees,”
Gurley was referring to harassing conduct that is not protected by Section 7,
and was responding to unsolicited reports of improper behavior. But Gurley did not describe to the employees any such unprotected, harassing conduct
or improper behavior.5 Absent such explanation, Gurley’s broad prohibition
against harassment had a reasonable tendency to interfere with, restrain, or
coerce the employees in the exercise of their Section 7 right to solicit
support for or opposition to the
B. Threats
of Job Loss, Plant Closure and
Inevitability of Strikes
1. Facts
Gurley and Vice President/General Manager Arthur Caruso made essentially identical joint speeches to all of the employees about a week before the election.
Gurley told the employees, inter alia, that if after negotiating,
the Respondent or the Union was not willing to accept the other party’s
contract proposals, then the Union’s only choice would be either to accept the
Respondent’s proposals or call the employees out on strike to try to get the
Respondent to agree to the
Caruso also told the employees about strikes at three of
the Respondent’s plants where the employees were represented by UAW
locals. Caruso told them that by the
time the 6-month strike at the Emhart plant ended, the company had subcontracted
out the work so that there was no longer any work for the 400 strikers. He also told them that the Respondent shut
down the Elyria and Bellwood plants while the strikes were still going on, that
the work which had been performed at those plants was relocated to other
plants, that when the strike ended at Elyria 470 of the 550 strikers did not
return to work, and that about 500 people lost their jobs at Bellwood. Finally, Caruso told the employees that the
Respondent closed the union plant at Garrett because of lost customers resulting
from the
Next, Gurley told the employees:
I want to be very clear on this point. The discussions today are in no way intended
to be a prediction of future events. It
is impossible for anyone to say what will happen if the
At the end of each speech, however, Gurley unveiled an 8-foot by 3-foot double-sided poster which displayed photographs of shuttered or dilapidated buildings, or vacant lots, all described on the poster as closed plants. The message on the sign was that these were “just a few examples of plants where the UAW used to represent employees” (emphasis in original). “CLOSED” was printed in large red block letters across each photograph, with the date of each closing written immediately below. At the bottom of the poster appeared the question “Is this what the UAW calls job security? VOTE NO!” Several full-sized copies of this poster were placed in prominent locations in the plant during the week before the election.
2. Analysis and conclusions
The message from this stream of communications was certainly clear: if employees selected unionization, a strike would very likely ensue, work then would have to be relocated from the plant, and finally the plant would be closed. I agree with the judge that employees could reasonably have perceived Gurley’s and Caruso’s statements, as well as the poster itself, as warnings that this scenario was likely. The majority’s approach is contrary to precedent—except for a recent, wrongly decided case.
The principles that govern this aspect of the case are set
out in
[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control . . . . [emphasis added].
The burden of proof is upon the employer to demonstrate
that its prediction is based on objective fact. Schaumburg Hyundai, Inc., 318
Gurley’s and Caruso’s predictions that unionization would result in strikes, job loss, and plant closure fail to meet the Gissel standard. First, the Respondent has not shown that its predictions were based on objective fact. The Respondent neither established, nor conveyed to the employees, an objective basis for its implication that the former plants depicted in the photographs were closed, or that work was transferred from them, because their employees were represented by unions or because those employees went on strike. Gurley testified that he could not say that the closing of any of the plants shown or depicted on the sign had anything at all to do with the fact that the employees in those plants had been represented by a union. He did not convey to the employees any objective basis for the implications that the plants were closed, or that work was subcontracted or relocated, because the employees chose union representation. Caruso did not testify (he died prior to the hearing). During his speech, he provided no objective basis for his declaration that UAW Local 376 was one of the most “strike happy” local unions in Connecticut; his implication that the Respondent had subcontracted out the work of 400 employees at the Emhart plant because of a strike; his implication that the Respondent shut down its plants at Elyria and Bellwood and relocated the work of those plants because of strikes there; or his claim that the Respondent shut down its Garrett plant because of lost customers resulting from the unionization of that plant.
Initially, the majority states that the Respondent related
only a recitation of past events and did not predict the future. That assertion is hard to take
seriously. Why else would these events
be described if not to convey the message that the choice to unionize will not
bode well? “What’s past is prologue,
what to come in yours and my discharge.”
The Tempest, act II, scene I,
lines 253–254. William Shakespeare.8 In any event, I disagree with my
colleagues’ assertion that the Respondent was careful to convey the objective
basis for its message. Clearly, the
Respondent conveyed no such objective basis.
And notwithstanding that Gurley and Caruso told the employees that Gurley and Caruso were not making threats,
the abundant weight of their other statements establishes that Gurley and
Caruso were implicitly threatening that unionization would result in plant closure. It is immaterial that Gurley and Caruso
outwardly professed that they were not making threats; they were implicitly
predicting this adverse consequence of unionization, without supporting the
prediction with objective facts. Cf. Michigan Products, 236
Second, although the Respondent’s speeches and the poster
impliedly blame unionization for the shutdown of plants and the subcontracting
and relocating of work, those are decisions that are within the Respondent’s control. Therefore, the speeches and the poster do not
“convey [the] employer’s belief as to demonstrably probable consequences beyond [its] control.” Gissel,
supra, 395
The judge thus correctly relied on Quamco, Inc., 325
Gurley’s and Caruso’s threats of inevitability of strikes
also violated the Act. As seen, Gurley
told the employees, inter alia, that if after negotiating, the Respondent or
the Union was not willing to accept the other party’s contract proposals, then
the Union’s only choice would be either to accept what the Respondent offered
or to call the employees out on strike to try to get the Respondent to agree to
the Union’s proposals. Quite similarly,
in Gold Kist, Inc., 341
Shortly after Gurley threatened the inevitability of a
strike by telling the employees that if the Respondent or the Union was not
willing to accept each other’s contract proposals, the
The majority’s reliance on EDP Medical Computer Systems, 284
My colleagues also rely on Manhattan Crowne Plaza, 341
While the majority’s decision here may be consistent with
APPENDIX
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not maintain or enforce our no-solicitation/ no-distribution rule selectively and disparately by prohibiting union solicitations and distributions while not enforcing the rule against nonunion solicitations and distributions and by prohibiting employees from speaking about International Union, Automobile, Aerospace & Agricultural Implement Workers of America, AFL–CIO (the Union) during working time while not prohibiting conversations about nonunion topics during working time.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will rescind our unlawful no-solicitation/no-distribution rules.
Stanadyne Automotive Corp.
Terry Craig, Esq.,
for the General Counsel.
Richard O’Connor Esq., for the Respondent.
Thomas W. Mieklejohn Esq., for the
DECISION
Statement of the Case
Raymond P. Green,
Administrative Law Judge. This case was heard by me in
1. That since on or about May 15, 2000, the Respondent
orally implemented and enforced a rule prohibiting employees from discussing
the Union while on working time.
2. That on or about June 6, 2000, the Respondent
by its President and CEO William D. Gurley, solicited employee complaints and
grievances and promised increased benefits and other improvements if they rejected
the
3. That on or about June 14, 2000, the
Respondent by Gurley, told employees that it would be futile to select the
4. That on or about June 21, 2000, the
Respondent by Gurley, threatened employees with plant closure and the loss of
employment if they selected the
5. That on or about June 21, 2000, the Respondent
by Arthur S. Caruso, threatened employees with plant closure, told employees
that strikes would be inevitable and threatened that employees would lose their
jobs in the event of a strike.
6. That on or about June 21, 2000, the
Respondent by the use of posters, threatened employees with plant closure.
7. That on or about July 12, 2000, the Respondent
increased its employees’ monthly pension benefits.
Based on the record
as a whole including my observation of the demeanor of the witnesses and after
considering the briefs filed,[1] I
hereby make the following
Findings and
Conclusions
i. jurisdiction
The parties agree
and I find that the Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
A. Background
The Company is a
privately held corporation engaged in the manufacture of engine parts for the
automotive industry. It has
manufacturing facilities located in various cities in the
In January 2000,
the Union began an organizing campaign at the Company’s
On May 15, 2000,
the
B. Alleged No-Solicitation Rule
Before the petition
was filed, there was no rule prohibiting employees from talking at their
workstations and during worktime about various issues including politics
etc. Indeed, the Company asserts that it
never enacted any rule prohibiting or even limiting employees from talking
about the union campaign. It asserts
that it never promulgated such a rule after the petition was filed or at any
other time.
Nevertheless,
several employees credibly testified that after the petition was filed, their
supervisors told them individually and in groups that they could not talk about
the
Respondent’s
witnesses testified that its supervisors were given instructions by management
and by legal counsel regarding what they could or could not say to
employees. With respect to solicitation,
the Respondent asserts that supervisors were told to instruct employees that
they could talk about the
Given my belief
that the employees who testified about this subject were credible, I conclude
that during the campaign period, substantial numbers of employees were told
that although they could solicit for the
There was no prior
prohibition against talking amongst employees about various issues while at
work. Further, the above described
prohibitions were told to employees only after the petition for election was
filed and employees were not told that the restriction on talking about the
Had the employer
promulgated and enforced a rule prohibiting solicitation during working time,
and enforced that rule in a nondiscriminatory manner, such a rule would be
presumptively valid. Our Way, 268
Nor does the fact,
standing by itself, that an employer promulgated an otherwise valid
no-solicitation rule after a union starts to organize, mean that the employer
has violated the Act. Hawkins‑Hawkins
Co., 289
In my opinion, the
no-solicitation instructions involved in this case, limited as they were to
union solicitations only, and first given after the
C. The June 6, 2000 Speeches
1. Alleged solicitation
of grievances
During the election
campaign, the Employer through Gurley and others, gave three speeches to assembled
employees. (On June 6, 14, and 21, 2000).
These speeches were written down and each person who addressed an
audience pretty much stuck to the script.
The first was on June 6, 2000, and the General Counsel contends that in
this speech, Gurley solicited a grievance and implicitly promised to grant
it. In pertinent part, Gurley stated:
Another part of the
bond between us is our benefits. Our
benefits remain quite good, still very competitive with area companies. Over the last 14 years, like our customer
expectations and our manufacturing processes, insurance has changed. In the
“old days”, employers, like Stanadyne, paid the full cost of medical
insurance. That day has come and
gone. In today’s competitive
marketplace, almost every employer shares the cost of insurance with its employees. I am shocked at what I am now hearing from
you about this issue. There is no doubt
that the changes this year to prescription co-pay are a disaster.
In particular,
stories are circulating about employees going without medication because of the
increased cost of the prescription drug co-pay amounts. I certainly take responsibility in the sense
that I directed our people to look into alternative packages. Somewhere along the line, we “missed the
boat.” It was not our intention to have
the prescription drug plans turn out the way they have. This is broken and needs to be fixed. Unfortunately, the law prohibits making any
changes during the election. But rest
assured that I am now well aware of the issue.
In the meantime, Rich Lurie is making himself readily available for
anyone who has insurance issues. Many
serious situations can be dealt with by better understanding our current plans.
The Respondent
points out that at an earlier part of the same speech, Gurley explicitly stated
that under the law he could make no promises, no statements that could be
construed as a promise, and that the company, “cannot make changes to any of
our policies or procedures.”
A little background
is in order. The Company, as part of its benefit program, negotiates each year,
with a number of health insurance providers and arranges that certain health
insurance benefits will be made available to its employees. Most of the employees have selected
ConnectiCare as their insurance carrier.
As part of the
package made available to employers, insurance companies normally set up a set
of benefits which may include prescription drugs. These are offered at a negotiated price to a
company and its employees. The carrier
may alter their benefit packages from year to year and this is generally not a
matter which is determined by the employer that decides to utilize a carrier
for its employees. Once a plan is bought, it is fixed for the following
year.
For the year 2000,
ConnectiCare made a change in its prescription drug plan which was designed to
strongly induce participants to utilize generics. Under the new plan, if a doctor
prescribed a branded medication that was also in generic form, the employee
participant had to use the generic or pay the difference between the price of
the nongeneric and the generic form of the drug. By January 2000, the Company was aware that some
employees had been affected by the change and were not happy.[5]
The speech given by
Gurley on June 6, 2000, acknowledges the change in the prescription drug
benefit and its affect on some employees.
But it is clear to me that he was not offering to change the benefits
that were established by the insurance company and which could not be changed
at this time by Stanadyne. Therefore it
is my conclusion that there was no promise attached to this statement. In telling employees to talk to Mr. Lurie if
they had any issues, Gurley did not, in my opinion, indicate or promise that
the Company would either change the insurance company’s benefit or that it
would reimburse employees the difference between what they paid and what they
were reimbursed.
In my opinion the
evidence does not establish that the Respondent unlawfully solicited
grievances. Therefore, I recommend that
this allegation of the complaint be dismissed.
2. Alleged threat of
reprisal
At the end of the
June 6, 2000 speech, Gurley made the following statement:
Second, it has come
to my attention that some union supporters, not all, but some, are harassing
fellow employees. You can disagree with
the Company position; you can be for the
This is a broadly worded statement which does not define what the Company meant by harassment. As such, it could mean any kind of solicitation from casual to persistent or anywhere in between. Since employee solicitations both for and against union representation, una