NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
PPG Industries, Inc. and International Union, United Automobile, Aerospace &
Agricultural Implement Workers of
November 16, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and Walsh
On March 13, 2007, Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel and the Charging Party each filed answering briefs.
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 decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, PPG
Industries, Inc.,
Dated,
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Belinda J. Brown, Esq., for General Counsel.[1]
Thomas O. McCarthy, Esq. and Joseph Mack III, Esq., for the Respondent.[2]
Richard J. Swanson, Esq., for the Charging Party.[3]
DECISION
Statement of the Case
William N. Cates,
Administrative Law Judge. This
case involves allegations of interference with employee rights. I heard this case in trial in
Specifically it is alleged that from about May 16 through June 15, 2006, the Company through the actions of its agents and supervisors violated Section 8(a)(1) of the National Labor Relations Act (the Act) by prohibiting employees from distributing union handbills on the driveway at the Company’s facility; by interrogating its employees about their union membership, activities, and sympathies and the union membership, activities, and sympathies of other employees; and by threatening its employees with job loss if the employees selected the Union as their collective-bargaining representative.
The Company, in its timely filed answer to the complaint, acknowledged it is an employer engaged in commerce within the meaning of the Act and is subject to the Board’s jurisdiction. The Company denies having violated the Act in any manner alleged in the complaint.
The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of the witnesses as they testified. I have studied the whole record, the parties’ briefs, and the authorities they rely on.
Findings of Fact
i. jurisdiction, labor organization status, and
supervisor/agent status
The Company is a
corporation with an office and place of business located in
The parties admit and
I find the
Director of Finance Ted Richardt (Director of Finance Richardt or Richardt) and Supervisor of Manufacturing Services Jackie Debes (Supervisor Debes or Debes) are supervisors and agents of the Company within the meaning of Section 2(11) and (13) of the Act, and I so find.
ii. alleged unfair labor practices
A. Distributing Union Handbills
It is alleged at paragraph 5(a) of the complaint that on or about May 16, 2006, the Company, by Director of Finance Richardt, at the Company facility, prohibited employees from distributing union handbills on the driveway at the Company’s facility.
1. Facts
The Company
manufactures automotive glass (windshields, for example) for original equipment
as well as replacement glass for major automobile manufacturers as well as satellites
of the automobile companies. The plant
takes up approximately 30 of the 65 acres it is located on. The plant operates three shifts per day
Monday through Friday. The plant is located
just off
Gary Weber (Weber),
25-year employee, testified he was a member of the voluntary organizing
committee (VOC) for the
Weber stated, he, and
other employees including Ron Kimmel, Tom Taylor, Pat Mulherin, and Dick Stuart
handbilled at the Company between 7 and 8 a.m. on May 16, 2006. Weber testified he and his fellow workers
were 5 to 7 feet apart along the plant entrance road where the driveway begins
to curve. Nonemployees were handbilling
off company property on
Weber stated, on cross-examination, this was the second day for those handbilling and that they handbilled after May 16, 2006. Weber acknowledged those handbilling were normally at the entrance to the plant and at the entrance to the building itself. Weber stated no employees were ever disciplined for handbilling. Weber also admitted on cross-examination that the Company’s solicitation policies specifically provided employees could handbill in nonworking areas including parking lots. Weber stated that those handbilling on the morning in questioned, utilized the exit part of the road from the plant to hand drivers that stopped handbills. Weber testified that after Richardt spoke with them they did not move from where they were nor did they stop handbilling. Richardt never thereafter said anything to those handbilling according to Weber.
Robert Pruitt, 25-year
employee and a member of VOC, wore prounion “T-”shirts, hats, and buttons at
work and was observed doing so by his immediate supervisor, Fred Murphy. Pruitt testified there were 10–12 persons
handbilling on May 16, 2006, and he along with 4 or 5 others were on the side
of the driveway. Others he recalled
being there were Chris Kite, Ron Kimmell, Gary Weber, and Kim Ross. Pruitt said nonemployees handbilled along
Pruitt acknowledged on
cross-examination being familiar with the Company’s solicitation policy that
allowed employees to handbill in nonwork areas including employee parking lots
as well as the entrance to the plant.
Pruitt readily acknowledged VOC members handbilled for the
Pruitt acknowledged that in his pretrial affidavit, provided to the Board, he had stated he tried to give Richardt a handbill and that Richardt did not take it and stated, “[H]e didn’t care who we were, that he wanted us back out on the road.” However, Pruitt insisted Richardt also told them he wanted them off the property. Pruitt and the others continued to handbill where they were even after the encounter with Richardt. Pruitt and others continued, throughout the union campaign, to handbill at the entrance to the driveway at the plant and at the plant entrance itself.
Ronald Kimmell, a 26-year employee and a member of VOC, wore union “T-”shirts and/or buttons to work daily and in the presence of his immediate supervisor, Jeff Cardin. Kimmell testified that on May 16, 2006, approximately 10 persons were handbilling at the company facility with the nonemployees remaining off company property along Inglefield Road while he and three or four employees handbilled along the driveway into the company parking lot and entrance. Those he handbilled with stood on and in the exit lane of the entrance driveway. According to Kimmell, Director of Finance Richardt “stopped there in front of me and rolled his window down and said we don’t want you here, get out of here, this is PPG property, we don’t want you’re here.” Kimmell said no one responded in any way to Richardt.
Kimmell acknowledged
on cross-examination he was aware that company policy allowed employees to
handbill in nonwork areas including driveways and employee parking lots. Kimmell engaged in handbilling “virtually”
every time handbilling occurred at the plant including handbilling before and
after May 16, 2006. Kimmel was never
disciplined for handbilling. Kimmel
testified that following May 16, 2006, “[w]e decided there was congestion up
there, people coming in, so we decided, well, we’ll just go to the door and
catch them at the door instead of maybe, having an accident . . . .” Kimmell explained that those handbilling
started first at the plant entrance but that Richard congestion with traffic
backing up on
Director of Finance Richardt testified he arrived at the driveway entrance to the plant on May 16, 2006, at approximately 7:45 a.m. where he observed employees handbilling as they had done on earlier occasions. Richardt explained that on the earlier occasions those handbilling had done so at the top of the driveway where it flanges out for approximately 20 feet. However, he stated that on the morning of May 16, “there were four or five of them [hand billing employees] . . . strewn down the driveway . . . [a]s opposed to being at the top where the driveway opens.” Richardt “pulled alongside the middle of where they were” and “a young lady approached the car.” Richardt “opened the window and said you need to move back to the—towards the head of the driveway.” Richardt said she simply responded, “[O]h okay.” Richardt said Kimmell approached and said, “[s]omething like whats going on? And I said I just told her they need to be moving back to the—towards the head of the driveway. And his response was, “oh.” Richardt closed his car window and drove on. Richardt explained he asked those handbilling to move back towards the road because, “there’s not enough room in that area [where they were] to be strewn out along the road. There’s plenty of room at the top of the driveway where it flares out for them to not be obstructing traffic or to pose a safety threat for themselves or anyone else.” Richardt did not have any further conversations with those handbilling at the plant, and he specifically denied telling employees they had to get off company property or that he did not want them there.
2. Credibility resolutions
From the testimony of employees Weber, Pruitt, and Kimmell, as well as, Company Director of Finance Richardt, it is clear certain facts regarding the handbilling is not in dispute. First, handbilling took place during the morning hours of May 16, 2006. Employees had engaged in handbilling before and after that date. Those engaging in handbilling were prounion supporters who were employee members of the VOC as well as some nonemployees. Employees that engaged in the handbilling were never disciplined for doing so and the Company’s policies, known to those handbilling, permitted employees handbilling during nonworking time in nonworking areas including the driveway, employee parking lots, and the entrance to the plant buildings. It is clear that four or five employees engaged in handbilling along the entrance driveway leading into the employee parking lots and plant entrance on May 16, 2006. It is clear that the employees engaging in handbilling that morning were in the middle of the exit lane of the driveway when they actually gave the handbills to those willing to accept them. It is undisputed that Company Director of Finance Richardt stopped and spoke to at least some of those handbilling that morning. There is a dispute as to what exactly was said during the brief encounter.
Employees Weber, Pruitt, and Kimmell testified, in essence, that Richardt told them to get off company property and even continued to insist those handbilling get off the property after he was advised they were employees. I am persuaded the three employee witnesses knew what they were talking about and did so truthfully. While their three accounts were not exactly the same, I do not view such as warranting a contrary conclusion as to their credibility. For example, Kimmell said no one responded when Richardt told them to get off company property whereas Weber and Pruitt recalled Richardt being told those handbilling were employees. Although Pruitt’s pretrial affidavit account of the encounter reflected Richardt wanted the employees handbilling to get back on the road he explained that Richardt also said he wanted them off the property.
I specifically do not credit Company Director of Finance Richardt’s testimony that he simply told “a young lady” and Kimmell that morning that they needed to be moving back towards the head of the driveway and that they responded, “oh” and “oh okay.” After observing all of the witnesses that gave testimony about the handbilling incident I do not believe it went as simple and as nonconfrontational as Richardt described the encounter.
3. Guiding principle
The Board in St. Lukes’ Hospital, 300 NLRB 836, 837 (1990), stated the distribution by off-duty employees of union literature in company parking lots is clearly protected by Section 7 of the Act. The Board noted that except where justified by business reasons a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid. The Board in Meijer, Inc., 344 NLRB 916, 918 (2005), made it quite clear that a prohibition against distributing literature in a nonworking area outside an employer’s facility constitutes an unlawful restriction under Section 8(a)(1) of the Act.
4. Analysis and discussion
Here, the Company, by its own policies, allowed distribution of literature to include union literature in nonworking areas including driveways, employee parking lots, and at its plant entrances. However, it appears Company Director of Finance Richardt moved away from the Company’s stated policy and sought to enforce an unlawful restrictive policy that, if followed, would prohibit handbilling along the driveway leading to the employee parking lots and plant entrances. The restrictive prohibition Richardt placed on the employees the morning of May 16, 2006, not only violated the Company’s own policy, it violated Section 8(a)(1) of the Act, and I so find. The Company advanced no legitimate business considerations necessary to justify Richardt’s interference with its employees Section 7 right to distribute union literature along the driveway into the employee parking lots and plant entrances. The Company presented no evidence of actual safety concerns. The handbilling may have been inconvenient for some such as Richardt on the morning in question but mere inconvenience does not establish a legitimate business justification for the interference herein. The fact the interference only occurred on one occasion does not warrant a dismissal of the allegation. The interference came during the union campaign when the Company committed other unfair labor practices. Finally, it is of no consequence that those handbilling later decided to move from the driveway to the plant entrances to avoid any congestion or inconvenience to others.
B. Interrogation
It is alleged at paragraph 5(b) of the complaint that on or about June 1, 2006, the Company, by Supervisor of Manufacturing Services Jackie Debes, at the Company’s facility, interrogated its employees about their union membership, activities, and sympathies and the union membership, activities, and sympathies of other employees.
1. Facts
Tarrell Thomas, an
8-year forklift driver and a member of the VOC, wore prounion buttons and
“T-”shirts at work each day after the
Thomas acknowledged on
cross-examination he was “constantly visible” in showing his support for the
Thomas’ account of his conversation with Supervisor Debes was not disputed. I credit Thomas’ testimony outlined above.
2. Guiding principles
It is an 8(a)(1) violation of the Act for an employer to engage in conduct which reasonably tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights to self-organization, to form, join, or assist a labor organization. An employer’s motive for questioning an employee, as well as whether an employer’s coercion is successful or otherwise is not relevant. American Tissue Corp., 336 NLRB 435, 441 (2001). The Board has held interrogation is not a pre se violation of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. UNITE HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Stated differently, in determining whether an interrogation is unlawful, the Board examines whether, under all the circumstances the questioning reasonably tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Under the Board’s totality-of-the-circumstances test to determine whether questioning of an employee constitutes unlawful interrogation the Board considers, in part, criteria referral to as the “Bourne factors.” See: Rossmore House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). The Bourne factors call for an examination of such factors as whether the interrogated employee is an open and active union supporter, the background of the interrogation, the nature of the information sought, the identity of the questioner, and the place and method of interrogation. The Board views the analytical standard as an objective one, that is, whether a reasonable employee would experience coercion or interference from the nature of the interrogation, not whether the actual employee in question felt coercion or interference. I shall evaluate the interrogation herein considering the principles and standards referred to above.
3. Analysis and conclusion
It is without question
that Thomas was a visible and vocal supporter of the
I find, as alleged in the complaint, that Supervisor Debes inquiries constituted coercive interrogation in violation of Section 8(a)(1) of the Act. It is of no consequence that Thomas did not personally feel coerced by Supervisor Debes’ questions.
C. Threats of Job Loss
It is alleged at
paragraph 5(c) of the complaint that on or about June 15, 2006, the Company, by
Supervisor of Manufacturing Services Jackie Debes, at the Company’s facility,
threatened its employees with job loss if the employees selected the
1. Facts
Vernon Roger Coleman (Coleman), a 27-year employee was a visible union supporter who wore union buttons to work daily and union “T-”shirts a few times. Coleman stated his supervisor, Jeff Cardin, observed him wearing the union “T-”shirts and buttons. Coleman testified he reported for work in the afternoon of June 15, 2006. Coleman, in going to his work area went “[s]traight through . . . a main aisleway” “past the supervisors” including Supervisors Cardin, Morrel, and Debes. Coleman testified he more or less jokingly said to Supervisor Debes as they passed that he was doing two or three jobs at the same time that day. Coleman testified; “She [Debes] stated that, if the UAW got into our plant, that I wouldn’t have a job—probably wouldn’t have a job working at PPG anymore.” Coleman said Debes “more or less wasn’t joking” that “she didn’t crack a smile” she “just more or less said it and turned around like she was finished talking with me.” Nothing else was said between them, and Coleman proceeded to his work area.
Coleman acknowledged on cross-examination he could not be exact as to the date or time of day his conversation with Debes took place but he believed it was on June 16, 2006. Coleman also acknowledged he had a good relationship with Supervisor Debes and that they laughed and joked frequently. Coleman said Supervisor Cardin was close enough to me and Supervisor Debes to have overheard their conversation.
Supervisor of Manufacturing Services Debes supervisors 45 to 47 forklift and other drivers along with two clerks. Debes never supervised Coleman on a regular basis but would supervise him when she was filling in for some other supervisor on weekends. Debes said she met with and greeted employees working for her at an area near the end of line 1 where all employees passed by. She said this was as an area where other supervisors also met with their employees, one or two at a time, to give them their job assignments for the day. Paychecks are also distributed from this location. The area is referred to as the “hitching post.”
On the day in question
in mid-June 2006, Supervisor Debes was present at the “hitching post” along
with Supervisor Cardin, who actually supervised Coleman. Debes said Administrative Supervisor Morrel
would also be in the “hitching post” area on some occasions but not every day. Supervisor Morrel no longer works for the
Company. Debes acknowledged she often
spoke with Coleman as he came through the “hitching post” area but stated she
did not have any conversation with Coleman on June 15, 2006, about the
Supervisor Cardin
testified he was present in the “hitching post” area on June 15, 2006, but did
not see or hear Supervisor Debes talking with Coleman. Cardin specifically stated he did not hear
Debes tell Coleman that he wouldn’t have a job or probably wouldn’t have a job
if the
2. Credibility resolutions
Coleman was a soft spoken witness with a sincere demeanor who seemed to know what he was talking about. His overall bearing, manner of speaking and mannerisms convinced me to accept his testimony as truthful. I credit Coleman’s testimony.
3. Guiding principles
An employer violates Section 8(a)(1) of the Act by threatening employees with the loss of job or discharge for engaging in protected activity. Bestway Trucking, 310 NLRB 651, 671 (1993), enfd. 22 F.3d 177 (7th Cir. 1994). Such a statement violates Section 8(a)(1) of the Act, however, only if under all the circumstances the statement tends to restrain, coerce, or interfere with an employee’s rights guaranteed by the Act. See, e.g., GM Electric, 323 NLRB 125, 127 (1997). I shall evaluate the statement herein pursuant to these guidelines.
4. Analysis and conclusions
I am fully persuaded
that Supervisor Debes’ statement to Coleman that he “wouldn’t have a job” or
“probably wouldn’t have a job working at PPG anymore” if the Union got into the
plant is a clear threat of job loss that violates Section 8(a)(1) of the Act,
and I so find. I note Coleman contended
Debes was serious when she made her comments to him. I would make the same finding even if Debes
was joking or smiling as she verbally threatened Coleman with the loss of his
job if the
Conclusions of Law
1. PPG Industries, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Union, United Automobile, Aerospace & Agriculture Implement Workers of America, UAW is a labor organization within the meaning of Section 2(5) of the Act.
3. The Company violated Section 8(a)(1) of the Act by engaging in the following conduct:
(a) Prohibiting its
employees from distributing Union handbills on the driveway at the Company’s
facility in
(b) Coercively interrogating employees about their union membership, activities, and desires and the union membership, activities, and sympathies of other employees.
(c) Threatening
employees with job loss if the employees selected the
4. The unfair labor practices of the Company described above affect commerce within the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Company has engaged in certain unfair labor practices, it is ordered to cease and desist and take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[4]
ORDER
The Company, PPG
Industries, Inc.,
1. Cease and desist from
(a) Prohibiting its
employees from distributing Union handbills along the driveway at its
(b) Coercively interrogating its employees about their union membership, activities, and sympathies and the union membership, activities, and sympathies of other employees.
(c) Threatening its
employees with job loss if the employees selected the
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
(b) Within 21 days after service by the Region, file with the Regional Director for Region 25 a sworn certification of a responsible official on a form provided by the Region attesting to the steps the Company has taken to comply.
Dated,
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 prohibit our employees from
distributing union handbills along the driveway at our
We will not interrogate our employees about their union membership, activities, and sympathies and the union membership, activities, and sympathies of other employees.
We will not threaten our employees with
job loss if our employees select the
PPG Industries,
Inc.