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,
Ridgeview Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural
Implement Workers of
March 25, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On October 27, 2008,
Administrative Law Judge Mark D. Rubin issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.
The
National Labor Relations Board[1] has considered the decision
and the record in light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,[2] and conclusions[3] and to adopt the recommended
Order as modified.[4]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Ridgeview Industries, Inc.,
1. Insert the following as
paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly.
“(a) Rescind the rule prohibiting employees from posting materials containing union/nonunion arguments or information on employee bulletin boards, and notify employees in writing that this has been done and that the rule is no longer in force.
“(b) Rescind the overly broad rules prohibiting employees from engaging in behavior designed to create discord or lack of harmony, or unauthorized soliciting of funds or distributing literature on company property, and notify employees in writing that this has been done and that the rules are no longer in force.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman,
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
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 create the impression among our employees that their union activities are under surveillance.
We will not impose new restrictions on employee movement in our plants in response to employee union activity.
We will not discriminatorily promulgate, maintain, or enforce rules prohibiting employees from posting notices, letters, or other nonthreatening materials pertaining to union or protected concerted activities on the plant bulletin boards that are available for other employee uses.
We will not promulgate, maintain, or enforce rules against employees (1) engaging in behavior designed to create discord or lack of harmony, or (2) soliciting during nonworktime such as breaks or before or after their shifts, or (3) distributing literature in nonwork areas during nonworktimes.
We will not solicit employees to report to management the union activities of other employees, or threaten to discipline employees engaged in the activities.
We will not discharge employees, or issue disciplinary warnings, reprimands, suspensions, job jeopardy agreements, or other forms of discipline, or restrict movement in our plants because of employees’ union activities, or because we suspected that they engaged in such activities.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, or discriminate against them in order to discourage membership in a union, or activities on behalf of a union.
We will rescind the rule prohibiting employees from posting materials containing union/nonunion arguments or information on employee bulletin boards, and we will notify employees in writing that this has been done and that the rule is no longer in force.
We will rescind the overly broad rules prohibiting employees from engaging in behavior designed to create discord or lack of harmony, or unauthorized soliciting of funds or distributing literature on company property, and we will notify employees in writing that this has been done and that the rules are no longer in force.
We will, within 14 days from the date of the order, offer Glenn Gentz full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make Glenn Gentz, Ben Balczak, and Dave Smith whole for any loss of earnings and other benefits resulting from our discrimination against them, less any interim earnings, plus interest.
We will reimburse Dave Smith for out-of-pocket costs he incurred as a result of our discriminatory imposition of a job jeopardy agreement, with interest.
We will, within 14 days from the date of this order, rescind the unlawful disciplinary warnings and suspension issued to Ben Balczak, the unlawful job jeopardy agreement imposed on Dave Smith, and the unlawful disciplinary warning and discharge of Glenn Gentz, remove any references to such in our files, and we will, within 3 days thereafter, notify Balczak, Smith, and Gentz in writing that this has been done, and that the discipline will not be used against them in any way.
Ridgeview Industries, Inc.
Colleen J. Carol, Esq., for the General Counsel.
Jeffrey
J. Fraser, Esq. and Kelley E. Stoppels,
Esq. (Varnum, Riddering, Schmidt & Howlett), of
Kenneth
Bieber, of
DECISION
Statement of the Case
Mark D. Rubin, Administrative Law Judge. This case was tried in Grand Rapids,
Michigan, on April 23, and June 3–6, 2008, based on charges and amended charges
filed by International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO (Charging Party Union or the Union)
on February 22, June 13, April 4, May 17 and 22, June 18, and November 28,
2007, and January 10, 2008, and by Glenn Gentz (Charging Party Gentz) on April
13 and May 22, 2007.
The Regional
Director’s consolidated amended complaint, dated February 28, 2008, alleges
that the Respondent violated Section 8(a)(3) by issuing written reprimands/warnings
and a 3-day disciplinary suspension to Ben Balczak, by changing Balczak’s work
assignment to press operator duties, by issuing a written reprimand/warning to
Charging Party Gentz, by discharging Gentz, and by requiring that Dave Smith
enter a “Job Jeopardy Agreement (JJA).”
The complaint
further alleges that the Respondent violated Section 8(a)(1) by creating the
impression that its employees’ union activities were under surveillance, by
imposing restrictions on employee movement, by prohibiting an employee from
discussing terms and conditions of employment with another employee, by
prohibiting postings as to “union/nonunion” arguments on employee bulletin
boards and removing such postings, by maintaining rules in its employee manual
prohibiting certain conduct asserted as protected by Section 7, by soliciting employee
grievances with an implied promise of remedy, by soliciting employees to report
to management as to the union activities of other employees and threatening
discipline for such activities, and by threatening employees with discharge for
engaging in activities in support of the Union.
The Respondent asserts that its actions alleged as violating Section
8(a)(3) were engaged in for legitimate
reasons unrelated to the Union or union activities, and that none of its
actions, alleged as violations of Section 8(a)(1), interfered with, coerced, or
restrained employees in the exercise of their Section 7 rights.
At the trial,
the parties were afforded a full opportunity to examine and cross-examine
witnesses, to adduce competent, relevant, and material evidence, to argue their
positions orally, and to file posttrial briefs.
Based on the entire record, including my observation of witness
demeanor, and after considering the briefs of the Respondent and the General
Counsel, I make the following
Findings of Fact
i. jurisdiction
The Respondent
maintains corporate offices and a factory in
ii. labor organization
I find, and it
is admitted, that the
iii. alleged unfair labor practices
The Respondent
The Respondent
operates two plants in
The Respondent’s Disciplinary Policies
The Respondent’s
disciplinary policy is essentially set forth in its employee handbook,4 under a section entitled, “Corrective
Action Policy.” The handbook, unchanged
from about 2006 to 2008, and in effect at all times material hereto, describes
the disciplinary system as progressive and notes that the Respondent may skip
one or more steps up to termination, depending on the circumstances and
seriousness of the offense. The progressive
discipline steps are as follows: first
offense—verbal reprimand, documentation to personnel file that the conversation
took place, and employee signature required; second offense—written reprimand,
copy to personnel file, employee signature required; third offense—written reprimand, copy to
personnel file, employee signature required, suspension for up to 3 days
without pay; and fourth offense—written reprimand, copy to personnel file,
employee signature required, and discharge.
In addition to the formal steps of the progressive discipline policy,
supervisors have the authority to verbally mention a problem to an employee
with a note to the file. Such a
“pre-verbal” discussion is not considered a step in the progressive discipline
policy, although it could lead to a first-step warning in case of a repeat
violation.
Also in addition
to the steps listed in its progressive discipline policy, the Respondent
utilizes a “job jeopardy agreement” (JJA) procedure which Yeomans described as
a “last-chance agreement where the person is told what the issues with their
performance or behavior are and then specific recommendations are made,
typically counseling that they’re asked to attend to help rectify the
situation.” Employees who are party to a
JJA are subject to discharge unless they fulfill its terms. The Respondent utilizes JJAs for a variety of
offenses including drug/alcohol test failures and attitude problems. Yeomans testified that JJAs are part of the
Respondent’s disciplinary policy and are typically used in lieu of the third offense
step, as set forth above.
The employee
handbook also contains a section entitled, “Employee Conduct in the Workplace,”
which sets forth specific examples of prohibited conduct which are subject to
the Respondent’s disciplinary policy, up to discharge. Two of the prohibitions are as follows: “Malicious gossip and/or spreading rumors;
engaging in behavior designed to create discord or lack of harmony,” and
“Unauthorized soliciting of funds or distributing literature on company property.”
Other Policies
The Respondent’s
owner, Nykamp, regularly schedules “Donuts with Dave” meetings with
employees. The Respondent schedules a
date and time. Employees sign up to
participate. At the meetings, the
Respondent provides refreshments and employees are permitted to ask questions
of Nykamp on various issues. Issues have
included various programs of the Respondent, including the attendance
program. Nykamp has been holding these
meetings since about 2003.5 Alleged discriminatee Dave Smith testified
that employees are free to bring up any work-related subject at these
meetings. Smith testified, “Somebody
else may have talked to him about we need a new vending service and this is
why. You could just talk about anything
work related, improvements, the way people could improve or the way the company
could improve.” Smith testified that the
meetings were a “two-way thing,” with employees making suggestions and Nykamp
responding.
Union Organizational Activity
During October
2006, shipping employee Dave Smith and material handler Ben Balczak began
talking about the possibility of acquiring union representation.6
In November, Smith contacted the Charging Union, which resulted in a
meeting with UAW organizer Ken Bieber in early December, a meeting also
attended by Balczak and employee Bryan Bowman.
A plan was formulated that the initial support for the Union would be
demonstrated by Smith and Bryan Bowman, and that Balczak would stay behind the
scenes to gauge the strength of employee support for the
Subsequent to
the meeting, Smith and Balczak spoke to other employees, including Glenn Gentz,
in an attempt to gauge employee interest in a union, and to gather information
helpful during an organization drive.
After January 1, 2007, Smith, Balczak, and Bowman began wearing UAW
insignia to work. Smith wore a UAW
T-shirt to work every Thursday (payday), and a UAW pin other days. About February 15, at various times, Smith
stood on the sidewalk by both plants and distributed union literature to
employees at shift change. Balczak wore a UAW pin on his shirt beginning in late
January or early February, and called other employees at home to promote the
In mid-December
2006, Human Resources Manager Yeomans noticed Three Mile employees Dave
Weerstra and Ray Trujillo in the Northridge plant and asked them why they were
there. One of them responded that they
were going to a union organizing meeting.
Yeomans contacted Plant Managers MacLaren and VanderLaan told them about
the conversation, and added that it was “the first time I’ve heard the union
word mentioned at Ridgeview, so just keep your ears open.”
Yeomans also
told owner Nykamp that there were “people encouraging union activity or union
sign-up,” and specifically mentioned the names Dave Smith and Ben Balczak.8
Subsequently, Yeomans and Nykamp would speak when there were union
activities or conversations. At the
hearing, Nykamp testified that “we would discuss examples, again, of Dave Smith
talked to so-and-so, or we have a flyer.”
The names of Smith and Balczak came up when the Respondent’s managers discussed
the latest union activity.9 Nykamp
testified that employees told him that Balczak and Smith were trying to organize
a union and that more than 100 employees talked to him about union activity in
January 2007, and then again in February.
Among other items, some of these employees reported to Nykamp the names
of other employees who approached them about the
Responses to Organizational Campaign
The Respondent
distributes its employee newsletter, “Newsbreak,” each payday to employees with
their paychecks. It generally includes
articles prepared by the human relations department dealing with new employees,
birthdays, events, benefits, and the like.
The January 24, 2007 “Newsbreak” distributed to employees contained a
letter to employees from Dave Nykamp, signed “Dave,” and prepared by Nykamp, together
with Yeomans, and with advice from the Respondent’s attorney.10
The letter
began, “I recently learned that several individuals are encouraging others to
consider a union at RVI. I am writing to
you to share my opinion about unions.”
The letter continued with a discussion of Nykamp’s negative perceptions
of the impact a union would have on the Respondent’s business and concluded as
follows: “RVI recognizes that employees
have the right to join or not join a union.
I believe each of you have the responsibility to decide for yourselves
whether a union would serve our best interests.
In case after case, union-employer relationships have proven to be
adversarial and marked by conflict. Such
an environment undermines employee participation and cooperation in the
workplace, and limits a company’s ability to compete. I strongly believe that union representation
does not serve the best interests of the company or its employees.”
Nykamp’s letter
also stated that if employees voted a union in, it was possible that, in
bargaining, they would lose “many of our current benefits/perks.” The letter specifically mentions the employee
library as one of those benefits, among others.
About a week
after the Nykamp letter was distributed, the Respondent held its regular
quarterly employee meetings. Three Mile
first-shift employees and some office employees attended the meeting in the recreation
area of the Three Mile plant. Using a
PowerPoint presentation illustrating union represented plants that had closed,
Nykamp spoke to the assembled employees about his negative views of unions,
that they’ve never needed a union before, and had been able to resolve any
problems without a union.11
Most of the
quarterly meeting was taken up with Nykamp’s discussion of unions, so that much
of what is normally discussed at quarterly meetings, such as performance
measurables and the state of the business, was not touched on. As a result, the Respondent held a departmental
employee meeting in mid-February so that the normal topics missed at the
quarterly meetings could be discussed.
The departmental
meeting, attended by first-shift hourly employees, lasted about 15 minutes, and
was conducted in the recreation area, with the Respondent’s vice president,
Doug Dykstra, speaking, and HR Manager Yeomans present. For much of the meeting Dykstra discussed
certain rules in the Respondent’s employee handbook, including policies against
gossip and the unauthorized distribution of materials and solicitation. Dykstra told employees that the penalty for
violations would be up to termination.12
During the
meeting, Dykstra used a PowerPoint presentation which displayed page 31 from
the employee handbook entitled, “Employee Conduct in the Workplace.” The page included the following as
violations: “Malicious gossip and/or
spreading rumors, engaging in behavior designed to create discord or lack of
harmony,” and “Unauthorized soliciting of funds or distributing literature on
company property.” The penalty provided
for violations of the rules is as follows:
“RVI imposes the appropriate corrective action (up to and including discharge),
given the facts and circumstances of a particular situation.”
On February 21,
2007, the Respondent distributed another Nykamp letter to employees, with their
paychecks. The letter began, “In the
January quarterly meetings, I discussed union organizing efforts at Ridgeview
and my personal feeling that union representation is not the answer to
resolving our issues or concerns at Ridgeview.
I know that union efforts persist and I am aware that the United Auto
Workers (UAW) held informational meetings for our employees over the past week. I continue to believe strongly that union
representation will negatively impact our communications, our efforts to
resolve problems together, and our ability to compete in a very challenging
industry. I remain open to talking about
this issue with any individual or group.
I am eager to learn and understand the issues and to work toward an
acceptable resolution. Please be willing
to call me directly and ask for an opportunity to meet.”
In the letter,
Nykamp discusses union authorization cards as follows: “Throughout this process, you have the right
to stand up for yourself and Ridgeview.
If you don’t want to sign a card, tell the person asking you that you
have no interest in signing a card. If
you feel pressured, coerced or harassed to sign a card, please report the
issue. We enforce our policy prohibiting
harassment of any kind.”
Anonymous Flyer
In late
January/early February 2007, an anonymous flyer or letter was posted and distributed
at various places in the plant, and placed in MacLaren’s office mailbox. The flyer, referred to in the record as the
“list,” states, verbatim: “PLEASE THANK
THE FOLLOWING PEOPLE FOR THEIR GREAT CONCERN FOR OUR WELFARE BY SUGGESTING A
UNION BE BROUGHT INTO OUR LIVES. DAVE
SMITH, GLENN GENTZ, BOB BONNEVILLE, MIKE SEGERS, BEN BALCZAK, GLEN OCKERT, JACK
JOHNSON [sic], JERRY CONALES, BRYAN BOWMAN AND ANY OTHERS THAT ARE NOT NAMED”
[caps contained in original, type size approximates the original].
MacLaren told
Dykstra about the list the day he received it and forwarded it to Yeomans. Dykstra asked MacLaren which employees were
named on the list and MacLaren told him.13 MacLaren discussed the flyer and the union
activities with his production supervisory staff, including John Deering,
Sherri Gray, Corey Falk, and Bob Dalloway.
MacLaren asked his production supervisors “if they have heard anybody on
the floor disgruntled with Ridgeview, if anything’s going on that I need to be
aware of . . . .”14
Shortly after
seeing the list, MacLaren spoke with some employees named on the list. He told Smith that a list had been posted
with his name on it and he wanted Smith to know that the list had been removed
and destroyed.15 MacLaren told Balczak that the Respondent was
investigating the list posting. Balczak
told MacLaren that he thought management was responsible because certain names
on the list with unusual spellings were spelled correctly. MacLaren apologized to Gentz as to his name
being on the list. MacLaren told Bonnville
that a list had been posted with employees’ names, that MacLaren was talking to
people involved to let them know that the Respondent was aware of it, was going
to “look into it and find out what was going on.” Bonnville responded that his name was on the
list, that he didn’t know how it got there, that it didn’t belong there, that
he had never spoken with a union representative, that he had never attended a
union meeting, and was not involved in any way.
Other than speculation by witnesses, there is no definitive or substantive
evidence in the record as to who actually produced or distributed the list.
Michael Segers,
employed at Three Mile for about 8 years as an automatic press operator and
named on the list, saw a copy of the list at Bonnville’s workstation, although
the posted list had been removed before his 6 a.m. shift had started. At about 7 a.m., Segers asked Human Resources
Generalist Hirdes “What’s going on with the list?” Segers told Hirdes that he knew nothing about
a union. Hirdes responded that he was
going to look into it, and would get back to Segers. Segers then approached MacLaren and asked him
about the list. MacLaren responded that
he didn’t know anything about it, was looking into it, and would get back to
Segers. Segers did not hear back from
either Hirdes or MacLaren by the end of his shift. After work, Segers called Yeomans and then
Nykamp, but was told they were both out of town. Segers then called Dykstra, and left a
message requesting a meeting to discuss the list.
Within the next
2 days, at work, Dykstra told Segers that he was ready to meet with him. Segers requested that Bonnville be allowed to
attend the meeting and Dykstra agreed.
Bonnville and Segers then met with Dykstra and MacLaren in MacLaren’s
office.
Segers said they
wanted to know who created the list, and why their names were on it.16
Dykstra said, “You obviously were seen attending union meetings or
talking up the union.” Segers responded
that he was not even aware of any union meetings and that he hadn’t attended
any. Segers mentioned an antiunion
letter written by another employee and left at his workstation, and said, “This
kind of stuff left at my workstation purposely for me, this is distracting.” Dykstra responded that “[t]here’s been a lot
of distractions. We have to get back to
what we do. It looks like people are
just angry because either we are pushing back or others are pushing back.” Dykstra added that “if people are not happy
at Ridgeview, that maybe we should see what we can do to see that they’re not
working here or something” and that “people were going to have to earn back the
trust.” Segers asked why he had to earn
back the trust and mentioned his years of employment with the Respondent and a
commendation he had earned. Dykstra responded
that “people were going to be on a tight leash” and that “we have to get back
to business.”
During the
course of the meeting, Bonnville stated that he was unaware of any unions,
hadn’t attended any meetings, and his name did not belong on the list. Dykstra responded that he would like to believe
that but couldn’t, and that he’d seen a list of 35 to 38 people that had been
attending union meetings. Bonnville said
that he hadn’t attended any union meetings.
Dykstra responded that he hadn’t really seen the list, but had heard
about it. Bonnville said that the
Respondent owed it to the people named on the list to investigate the list and
put a stop to it. Dykstra responded that
if the whole situation was “payback” for something that happened 4 years ago,
they needed to get over it.17 At some point during the meeting, Dykstra
asked Bonnville and Segers whether they were part of the
Employee Posting of Letters and Response
Near the same
date that the list was posted, employee Rob Twa posted a letter on an employee
bulletin board opposing a union. The
letter began, “Management of this company is not allowed to share their views
on the union issue, BUT I CAN! If you
think that a union is going to make your life at RVI better, maybe you should
go ask the people at other union shops how they like their jobs.” The letter concluded, “If you don’t like it
here, then LEAVE! Chances are pretty
good that we didn’t like you anyway. If
you want to have everything your way then go work for BURGER KING!” (Emphasis in original.) In addition to Twa, other employees signed
the letter.
About the day
after the Twa letter was posted, employee Bob Keeler posted a letter supportive
of the
Shortly after
the Keeler letter posted, HR Manager Yeomans instructed Hirdes to remove the
letters from the employee bulletin board.
Yeomans testified that while there were no face-to-face confrontations
between Twa and Keeler, she concluded that the content of the letters was
“starting to get nasty.” Yeomans denied
that the letters were removed because they contained “union arguments,” and
asserted that they were removed because “we don’t want verbal assaults on
people going up on our bulletin boards.”
There is no evidence that the exchange of posted letters led to arguments
or fights about the union issue.
When the letters
were removed, a memo signed by Yeomans was posted on the bulletin boards at
both plants. The memo contained the
following: “Effective immediately
(2/2/07), Ridgeview will not allow the bulletin boards to be used as a format
for union/nonunion arguments. Any
material that is adversarial in nature from either viewpoint will be removed. Please contact any member of the HR team for
approval to place items on the bulletin boards.
It’s time to get our focus back to making quality parts and meeting the
needs of our customers.” The entire
memo, except for Yeomans name and title, was printed in capital letters, and
the final sentence was also bolded. The
Respondent has never rescinded the memo or the policy stated therein.
The bulletin
boards at both plants serve the same general purposes, and employees at both
plants had previously been allowed to freely post their cards or information,
without prior management approval and without content restriction. While the union-related back and forth
letters were only posted at the Three Mile plant, the memo restricting bulletin
board use was posted at both plants. Neither
Twa nor Keeler was disciplined in regard to the letters they posted.
Ben Balczak
Ben Balczak is
employed by the Respondent as a hi-lo operator at the Three Mile plant.19
Press operators fill gondolas (containers) with parts they have
produced, and hi-lo operators, such as Balczak, roam the plant picking up full
gondolas and replacing them with empty gondolas, and also bringing various
supplies to the press operators. In
performing these duties, the hi-lo operator job is a somewhat mobile position
within the plant. Prior to early 2008,
when Balczak was assigned to the east end of the plant, Balczak’s job entailed
servicing 10 presses from one side of the plant to the other.
Balczak, January 26, 2007 Level II Written
Reprimand/Warning
On January 26,
2007, 2 days after the first Nykamp letter to employees, Balczak was driving
his hi-lo in the south room area of Three Mile, near the workstation of
leadperson Andrea Olescewski. Balczak
asked Olescewski to walk up to his hi-lo, intending to tell her a joke
involving an assertedly humorous reference to an antiunion argument made by
Nykamp. Olescewski refused, telling Balczak that she was busy. After Olescewski refused Balczak’s second
request, he dismounted from his hi-lo and walked to her workstation. Balczak asked her what she was “looking for
on these parts.” Balczak then said to
her, “If you ever get to
Olescewski
answered that she didn’t like what the
Later that same
morning, Balczak received a disciplinary warning from his immediate supervisor,
John Deering. Balczak reported to the
automatic production supervisor’s office, where he met with Deering and
Olescewski’s supervisor, Sherry Gray.
Deering handed Balczak a two-page level II written disciplinary action.20
The first page of the warning described Balczak’s actions earlier that
morning vis-à-vis Olescewski, and contained the following: “Ben [sic] actions are clear violations of
appropriate employee conduct outlined in the RVI Employee Handbook (please see
attached copy),” and “Should future incidents of this nature occur, they would
result in further disciplinary action.”
The second page of the warning consisted of page 31 of the Respondent’s
employee handbook, the section outlining the Respondent’s employee conduct and
disciplinary policy, with three asserted violations of the Respondent’s policy
highlighted.
Deering read the
first page of the warning to Balczak, and read the highlighted portions of the
second page. The highlighted portions
read to Balczak are as follows: “malicious
gossip and/or spreading rumors; engaging in behavior designed to create discord
or lack of harmony;” “deliberate idling, loitering, inattention to duty, or
leaving workstation without permission;” and “interfering with others in the performance
of their jobs or causing a slow-down of production.” Balczak signed the warning, and admitted the
incident with Olescewski as described in the warning, but called the discipline
“not right.” While Deering signed the
disciplinary warning and handled the disciplinary meeting with Balczak, he did
not witness the incident that led to the discipline. Human Resources Generalist
Hirdes made the decision to discipline Balczak.21 Deering testified, in general as to idling offenses,
that “if they’re idling and they’re there for a minute, I’m probably not going
to write them up.” “But if they’re there
for five and ten, then yeah, I’m going to do something.”
Balczak, February 2, 2007 Level III 3-day Suspension
On February 2, 2007,
at about 7 a.m., Balczak and hi-lo driver Huy Pham were near each other on
their hi-los. Balczak asked Pham to meet
with him by the scrap hopper machines.
The two of them met there by themselves, and Balczak handed Pham some
union materials he had printed from the internet. Pham started to read the materials, and told
Balczak that she didn’t want “nothing to do with this.” Pham handed the materials back to
Balczak. Balczak told Pham that if she
didn’t want to read the materials while she was on her hi-lo, she should take
it to the bathroom and read it there so she wouldn’t get caught, but that
Balczak needed the materials back that day.
Pham responded, “I don’t want nothing to do with this.” Pham then left, with the entire conversation
taking about 2 minutes.22
Later that day,
Deering, under instructions from Plant Manager MacLaren, brought Balczak to
MacLaren’s office. Deering left, leaving
Balczak with MacLaren and Yeomans.
MacLaren imposed a level III 3-day suspension on Balczak, and read the
first page of the two-page written disciplinary notice to him. Included in what MacLaren read was the “management
comments” section as follows: “On
2/2/07, at approximately 7:30 a.m., Ben approached Huy Pham and asked her to
meet him at the
The second page
of the disciplinary notice consisted of page 31 of the Respondent’s employee
handbook, the section entitled “Employee Conduct in the Workplace.” Highlighted were the following sections: “Deliberate idling, loitering, inattention to
duty, or leaving workstation without permission”; “Interfering with others in
the performance of their jobs or causing a slow-down of production”; and
“Unauthorized soliciting of funds or distributing literature on company
property.” MacLaren told Balczak that
the reason the discipline consisted of a level III suspension was based on the
employee handbook, and that his violations were highlighted (circled).23
Balczak signed the disciplinary notice, upon MacLaren’s request. Balczak asked if he could retrieve his
belongings from his hi-lo. MacLaren responded
that he could, but MacLaren would go with him.
Upon reaching
the Balczak’s hi-lo on the plant floor, Balczak asked MacLaren if he could use
the hi-lo radio to call fellow hi-lo driver Brian Bowman, whom he carpooled
with, to let him know that he was leaving and Bowman would have to find another
ride. With MacLaren listening, Balczak
told Bowman, on the radio, that he had been suspended for 3 days and Bowman
would have to find his own ride home.
Bowman responded that Balczak had to be kidding. Upon Bowman’s comment, MacLaren told Balczak
to end the conversation. MacLaren then accompanied
Balczak out of the plant, after stopping at Balczak’s locker.
When Balczak
returned to work on February 8 from the 3-day suspension, MacLaren and Deering
met him by the timeclock, and took him to the production supervisor’s
office. MacLaren talked about Balczak
having a strong work ethic and it being unusual that he had two disciplinary
warnings in a short period of time, and mentioned that he didn’t want “you
guys” to say anything to Pham going forward.24 Balczak told MacLaren and Deering that “[i]f
you want to keep an eye on me, let me hang coils,”25 and also suggested that he had not performed
his “janitor of the day” duties the prior week, and he could do that.26
Deering assigned Balczak temporarily to janitorial duties, while he and
MacLaren discussed what job to assign Balczak to.
After lunchbreak
on February 8, Deering told Balczak that the Respondent was going to start
training Balczak on a press. Balczak had
never worked on a press before. He was
then trained for 1-1/2 days and assigned to the 150 Minster press.27
Most of the
Respondent’s production employees are organized into three employee cells. Each cell operates two presses. Generally, two of the cell members operate
presses and the third serves as a material handler. The cell members have the ability to decide
among themselves which members will perform which functions. The press operator is basically a stationary
job, while the material handlers, including hi-lo operation, are mobile
throughout the plant. The sense of the
testimony is that wire hanging is part of the material handler function.
Balczak, March 22, 2007 Level I Reprimand
Balczak received
a Level I oral reprimand/warning from Deering on March 22, 2007. The warning was memorialized in a written
disciplinary action form signed by Deering and Hirdes. The management comment section on the form
was completed as follows: “On 2/19/07
you ran part numbers 56154/5 in the 150M Northridge started to use these parts
on 3/20/07 and found that they were mixed.
They have sorted one half of a gon28
of 17,000 pcs and found several 56154 in the container of 56155. In the future while running right and left
hand parts you need to pay close attention to insure that parts do not get
mixed.” In plainer language, the
discipline was for, assertedly, mixing left and right side automotive
parts.
The process
utilized at Three Mile for moving and auditing parts after production is as
follows: The press operator produces
parts which are placed into a gondola container. When a gondola is filled, it is picked up by
a hi-lo operator, who replaces the filled gondola with an empty one. Both the hi-lo operator and the press
operator complete an audit label29 containing
information as to the item manufactured, press operator, hi-lo operator, and
other information. The hi-lo operator
scans the label barcode into inventory, adding information identifying the
hi-lo operator. The parts then move into
a particular storage aisle, depending on where they are headed to next. Some of the parts are sent to Northridge for
additional or secondary manufacturing.
Some of the parts are placed into storage to await shipping to a
customer.
The label,
introduced at the hearing, an audit label from the gondola upon which Balczak
received the disciplinary warning, did not contain Balczak’s, or any other,
operator number.30 The label is dated March 19 and, thus,
conforms to the audit of the assertedly mixed parts rather than to the original
production of the parts. As to the
asserted mixed parts, Deering received a phone call from an unidentified
employee31 in the quality control
department at Northridge, informing Deering that they were attempting welding
operations on a certain batch of parts from Three Mile, but because the parts
were mixed it was affecting their operations.
Deering told the Northridge quality control employee to return the parts
to Three Mile for sorting.32 When the parts returned to Three Mile,
Deering told Balczak to re-sort the parts, and gave Balczak the reprimand. Upon re-sorting, Balczak found no mixed
parts, and so informed Deering.
Balczak, March 23, 2007 Level II Written
Reprimand/Warning
The following
day, March 23, Balczak received another disciplinary action from the Respondent,
this one a level II written reprimand/warning for assertedly mislabeling a gondola
of parts. Deering, in his office, with
Hirdes present, handed the warning to Balczak, and told him that parts were
incorrectly labeled. The disciplinary
action memo states that on March 22, Balczak mislabeled right side parts as
left side and that there were also mixed parts.
Balczak
testified while he signed the disciplinary warning, he did not agree that he
had, in fact, either mislabeled or mixed the parts. Deering testified that he didn’t know whether
he had the label which contained the asserted mislabeling with him at the time
he imposed discipline on Balczak, and that the label introduced at the hearing,
as being on the gondola filled by Balczak on March 22, did not include the
identification of the press operator, apparently because it was re-labeled at
Northridge. When asked on
cross-examination whether Deering showed him the mislabeling, Balczak answered,
“—I believe so.” (The dashes are
contained in the transcript of the testimony.)
With Deering not remembering whether he had the label with him when disciplining
Balczak and with the lack of certainty implicit in Balczak’s answer on
cross-examination, I decline to make a finding as to whether Deering actually
showed Balczak the asserted mislabeling.
The record
contains no evidence that Balczak actually committed the asserted mislabeling
or mixing of parts on March 22, for which the March 23 discipline was imposed,
other than the hearsay testimony contained in the written disciplinary action
memo given to Balczak by Deering. The
“management comments” on the disciplinary memo are as follows:
On 3/22/07
Northridge found one skid of 78254 labeled as 78255, and one skid of 78255
labeled as 78254. On 3/20/07 you ran
these parts out of the 150M where you applied the labels. It is standard practice that all operators
perform a part to label audit before applying labels to containers, assuring
our customers received correctly labeled parts.
Ben, you need to perform a part to label audit every time before placing
labels on containers to help RVI meet our customer’s expectation of 100% proper
labels. In addition to being mislabeled,
employees at Northridge found several 78254 mixed in with the 78255. You need to pay close attention while running
these parts to eliminate this problem.
This mislabel incident in conjunction with the quality issue on 2/19/07
concerning mixed parts, is the reason for the written reprimand. Any further issues of this nature will result
in further disciplinary action.
While both
Deering and Balczak testified that they signed the disciplinary memo, there is
no specific evidence as to who wrote the management comment section.
The Respondent’s
labeling procedure is as follows: a supervisor
makes a set of left-side and right-side labels; the supervisor places the
labels next to the container where the parts are running; the press operator performs
a part to label check and then calls for a hi-lo operator; the hi-lo driver
then performs a part to label check, scans the parts, and takes them away.
Gentz, February 21, 2007 Level I Oral
Reprimand/Warning
Glenn Gentz was
employed by the Respondent as a material handler at Three Mile from 1993 until
his discharge on March 27, 2007. Although
Gentz was classified as a material handler, he performed the function of hi-lo
truckdriver and, within the Respondent’s cell concept of employee organization,
he also “hung coils,” helped set up dies, and assisted press operators with
operational problems. Gentz spent about
90 percent of his worktime performing material handling (hi-lo operation) and
hanging coils.
Gentz testified
that he learned of the union organizational attempt from Balczak and spoke to
other employees about the
About February
19, 2007, Gentz stopped his hi-lo to help troubleshoot a slippage problem that
a press operator was having.34 The operator told Gentz he was having a
problem with the press feeder system.
Gentz walked to the back of the press to observe and “grabbed my bag of
potato chips to go along with me.”
Supervisor Deering noticed Gentz standing by the press eating the
chips. Deering approached Gentz and told
him that the 404 press, which had been down, was now running and Gentz should be
over there checking parts. Gentz replied
that he didn’t hear anybody call for him, and that the press had been down for
1-1/2 days.35 Gentz had been at the press for about 15
minutes when approached by Deering.
A day or 2
later, Deering called Gentz into the supervisor’s office and handed Gentz a
disciplinary action memo dated February 21, containing a level I oral reprimand/warning. The disciplinary warning, written in the
first person, is signed by Deering. The
comment section asserts that Deering “had numerous complaints of you not
performing all duties of your job,” and that “[o]n Monday 2/19/07 I witnessed you eating/idling
behind the 301M while the 404M was down, at which time I verbally asked you to
get involved.”
Deering read the
discipline notice to Gentz in its entirety.
Gentz told Deering that he was monitoring the feed on the press. Deering responded that “may be possible . . .
but there are still other incidents that we want to correct, and that’s why
we’re going forth with this document.”
Gentz refused to sign the warning, telling Deering that he didn’t
believe it (that other employees had complained about him). Gentz left the office and as he was walking
away said in a loud voice towards Deering and MacLaren “and you wonder why people
want a union.” Deering and MacLaren were
about 25 feet away from Gentz when he made the comment.36
Deering did not respond.
As to the
asserted numerous complaints, Deering testified he had received complaints from
the operator of the 1000-ton press and the operator of the 1001-ton press. When asked on direct examination for the
names of those operators, Deering testified, “Probably maybe a Jim Erhorn, Jose
Casera.” Such hedging in answer to the
question of the Respondent’s counsel, together with the absence of any other
evidence in support of such complaints, lends doubt to whether there were, in
fact, any such complaints.
Gentz, March 27, 2007 Discharge
Jose Calderon,
employed by the Respondent at Three Mile, operates a 400 Minster press. For a time on Tuesday, March 23, 2007, he
assisted press operator Juhar Birhanu at Birhanu’s 300 Minster press. Gentz was operating his hi-lo in the area of
the 300 Minster, driving down the aisle.
As Calderon completed assisting Birhanu he backed into the aisle,37 to return to his press. Birhanu grabbed Calderon’s shoulder and told
Calderon to “be careful.” As Calderon
looked up, he saw Gentz on his hi-lo, about a foot or 2 away.38
Gentz had not sounded the hi-lo horn, and Calderon could not hear the approach
of the hi-lo because of the plant noise level.
Gentz stopped
the hi-lo and dropped its forks on the floor, making a loud noise. Calderon didn’t hear the forks drop, but was
startled by the presence of the hi-lo.
Calderon, upset because he believed Gentz was not operating the hi-lo in
a safe manner, walked closer to Gentz and asked in a raised voice, “Glenn,
please next time can you play the horn?”
Gentz responded in a raised voice that it was not a “corner”39 and Calderon should watch where he was
walking. Calderon then walked past
Gentz, still on his hi-lo, on his way to the restroom. Calderon credibly testified that as he was
walking to the restroom he was still upset with Gentz and with Gentz’ verbal response. Calderon turned, walked back to Gentz,
stopped 1 to 2 feet away, and said to Gentz, “I’m going to ask you one more
time, can you please play the horn next time.
I don’t have eyes in the back of my head.”
As Calderon
spoke, Gentz, still on the hi-lo, grabbed the collar of Calderon’s shirt with
two fingers40 and pulled Gentz a
little closer, about 6 inches away. Then
Gentz repeated that it was not a corner, and let go of Calderon. Calderon testified that Gentz’ voice was
“low, but very strong.” Calderon then
walked away. During the entire incident,
Gentz remained on the hi-lo, and did not poke or push Calderon, or make threats
to him.41
Neither Calderon
nor Gentz reported the incident to management, but Calderon did mention it to
fellow employee Alberto Davila, who told MacLaren during lunchbreak that there
was an incident with Calderon and Gentz, and that Calderon almost got hit by a
hi-lo. MacLaren immediately asked HR Representative
Hirdes to investigate the incident.
At about this
time, Calderon’s supervisor, Sherri Gray, asked Calderon about the incident. Calderon told Gray his version of what
happened. According to Calderon, Gray
then went inside her office to speak to somebody else. Gray then told Calderon to go back to
work.
Hirdes testified
that after MacLaren told him to investigate the incident, he called Calderon
into his office, and just the two of them met.
Calderon testified that MacLaren was also present and that the meeting
took place in MacLaren’s office.42 Hirdes describes his investigatory interview
as being just between himself and Calderon.
MacLaren testified that he was not present during the interview. Calderon testified that not only was MacLaren
present, but he began the interview by telling Calderon that something happened
this morning, and asking what had happened.
Calderon repeated his version of what happened. After Calderon was excused to go back to
work, Hirdes typed a statement based on Calderon’s version, for him to sign,
which Calderon did the following day.
About 15 minutes
later, Hirdes spoke with Juhar Birhanu, the press operator whom Calderon had
been helping just before the incident with Gentz. Hirdes asked what happened, took notes, typed
out a statement based on the notes, asked Birhanu to read and sign the statement,
and Birhanu signed the statement. In
sum, the statement that Birhanu signed for Hirdes states as follows in respect
to the incident: that Calderon backed up
and Birhanu yelled “hi-lo”; that Calderon told Gentz to “Honk your horn by the
press”; that Gentz replied to Calderon, “[Y]ou watch where you are going”; that
“a little later” Birhanu saw Calderon walk up to Gentz (who was on the hi-lo);
that Gentz “grabbed Jose by the shirt and say something about not honking the
horn by the press and you better watch it.”
After interviewing
Calderon and Birhanu, and before speaking to Gentz, Hirdes told MacLaren that
the situation was “pretty serious,”43
and that Calderon claimed he was almost hit by a hi-lo driven by Gentz, that
Calderon felt threatened and that there was a witness who saw the whole
thing. At MacLaren’s instructions,
Calderon, and then Birhanu, individually, were brought to MacLaren’s office to
repeat their stories to MacLaren and Hirdes.
After the
Respondent’s supervisors had solicited Calderon’s version of the incident three
times and Birhanu’s twice, MacLaren and Hirdes decided to interview Gentz. Either later in the afternoon after the
interviews with Calderon and Birhanu, or the next morning, Gentz was called
into a supervisor’s office and met with MacLaren and Hirdes.44
Hirdes and MacLaren questioned Gentz, and Hirdes took notes. Gentz was asked if he knew what the meeting
was about, and responded by asking, “[A] hi-lo incident?” Hirdes told Gentz that he’d be writing down
what Gentz said and in fact, later, after the meeting produced a written
statement, based on the interview, which Gentz signed.
Hirdes asked
Gentz what happened by the 300 Minster press.
Gentz said45 that
he was slowly driving his hi-lo down the aisle by the 300 Minster press, that
Calderon stepped out in front of the hi-lo, that Gentz had stopped his hi-lo
and let the forks drop on the ground and make a clanking noise so that Calderon
would know he was there, that Calderon turned to Gentz and yelled, “[Y]ou honk
your horn,” that Gentz yelled back, “[Y]ou look where you’re going,” that the
hi-lo was about 2 to 3 feet from Calderon, that Gentz did not speak to Calderon
after the incident, and that Birhanu witnessed the incident.46
While Hirdes
testified that he asked Gentz whether he remembered anything else and that
Gentz answered that he did not, and MacLaren testified that he asked Gentz
twice to tell him everything that happened with Calderon and Gentz told him
that nothing else happened, the statement that Hirdes prepared for Gentz based
on Hirdes notes of the interview, and detailed in other respects, does not
contain such a declarative response by
Gentz. In other words, it would have
been easy and natural for Hirdes to put a sentence in the statement he prepared
for Gentz to the effect that the statement contains everything that Gentz knew
about the incident, but he did not.
Based on such, I decline to find that Hirdes or MacLaren asked whether
Gentz remembered anything else or that Gentz answered that he did not.47
In any case, Gentz was not asked, and did not volunteer, whether he
touched Calderon during the incident.
However, MacLaren did specifically ask Gentz if any words were exchanged
between himself and Calderon.48
After
interviewing Gentz, MacLaren and Hirdes discussed the findings of the investigation. MacLaren testified, “I sit down behind closed
doors with Brian Hirdes, and based on what Jose [Calderon] had told me, the
witness of Juhar (Birhanu), I am enforcing the policies that Ridgeview has, and
because an employee of mine was physically either intimidated or threatened, I
called [Human Resources Manager] Terri Yeomans and made a recommendation that
Mr. Gentz be terminated.” MacLaren also
testified that before making the recommendation he did not review Gentz’ personnel
file, was not aware of any other discipline against Gentz for violence or
threats, did not consider any lesser form of discipline, and that other than
the incident with Calderon, Gentz was a satisfactory employee.
Hirdes also
participated in the call to Yeomans and also recommended that Gentz be
discharged. Hirdes testified, “I told
Terri [Yeomans] that we had an eyewitness account of Glenn grabbing Jose
Calderon by the shirt. I said that Juhar
saw him grab him. And I said that Glenn
[Gentz] did not admit to grabbing him.”
Hirdes testified that he further told Yeomans that “given that there was
physical contact and threatening behavior on the floor in front of other employees,
I recommend that we terminate him based on that, what I found out in the facts.” Yeomans responded to the recommendations of
MacLaren and Hirdes by telling them that because Gentz is a “very long term
employee at Ridgeview” she didn’t want to go forward with anything until she
could discuss the situation with the Respondent’s owner, Nykamp, and he either
“blessed it or didn’t.”49 Nykamp was out of the office, and not
scheduled to return until the following Monday or Tuesday. HR Manager Yeomans testified that she did not
remember Gentz having any prior disciplinary issues for arguing with or
threatening other employees, or any other disciplinary issues for personal
involvement with another employee.
On Tuesday,
March 27, after Yeomans consulted with Nykamp, Gentz was called into a meeting
with Yeomans and MacLaren. MacLaren told
Gentz that “based on the thorough investigation with the incident between you
and Jose Calderon and we have a witness, physical intimidation or threatening
is not allowed in this plant, therefore we need to part ways.” Gentz asked what “part ways” meant. MacLaren responded that it meant that the
Respondent was terminating his employment effective that day. Gentz asked if Nykamp knew about the
discharge, and then said that his wife was sick and son being sent to
MacLaren told
Gentz that Calderon claimed that Gentz grabbed his shirt and pulled him
forward. Gentz said that he did, in
fact, grab Calderon’s shirt. MacLaren
asked why Gentz hadn’t told him that when Gentz spoke earlier with Hirdes and
MacLaren. Gentz said he didn’t think it
was a “big deal.” MacLaren responded
that it was a “huge deal.” Gentz asked
if he could show MacLaren what he did, and MacLaren agreed. Gentz then grabbed the collar of MacLaren’s
T-shirt with two fingers and lightly pulled it.
Gentz said that he knew that was wrong, so he took his hands off
Calderon immediately. MacLaren did not
change the discharge decision, and Hirdes escorted Gentz off the Respondent’s
property. Yeomans testified that an
additional reason for discharging Gentz was because he lied during the
investigation, referring to the fact that Gentz did not mention touching
Calderon to Hirdes, during the Respondent’s investigation of the incident.
Smith, Movement in Plant
David Smith was
initially employed by the Respondent in July 1997, left the employment in
October 1999, and was again employed by the Respondent from July 2000 until his
voluntary departure on February 19, 2008.
Smith worked at Three Mile as a shipping and receiving clerk, operating
a hi-lo, until he transferred to the Northridge facility in August 2007, where
he was employed as a secondary operator.
His organizational activities on behalf of the
In mid-January
2007, Smith was driving his hi-lo in the Three Mile plant, and noticed press operator Glen Ockert standing by his
press, with the press not operating.
Smith asked if the press was broken.
Ockert responded that his supervisor told him to take a break because he
was operating the job himself. They
chatted for less than a minute when supervisor Sherri Gray walked up to them
and asked whether Ockert’s press should be running. Ockert responded, “No,” and Gray walked
away. At that, Smith left, telling
Ockert that Gray looked “kind of mad,” and he better leave.
When Smith
reported to work the next day, Smith’s supervisor, Fred Thomas, called him into
his office and told Smith that he was going to tell everybody at the daily
meeting, but he was going to tell Smith first, that “[y]ou need to stay in your
own department.” Thomas did not further
explain his directive. Later that day,
at the departmental daily meeting, Thomas told the assembled workers, “I told Dave
already and I’m going to tell the rest of you, you need to stay in your own
department.”50 The Respondent had no such previous policy
restricting employee movement in the plant.51
About a week
later, Smith was assigned for 2 days to work at Northridge to replace an absent
shipping and receiving employee.
Returning from the 20-minute daily break,52
Smith engaged in a brief discussion, lasting seconds, with fellow employee Mary
Barr, as they were walking across the plant.
As they were walking, Plant Manager VanderLaan waived Barr to come to
him. Barr walked over to VanderLaan and
Smith returned to work.
About 20 minutes
later, Smith was approached by the Respondent’s vice president, Doug Dykstra,
and the Respondent’s shipping department manager, Jim Bagley. Dykstra said to Smith that someone told him
that Smith was walking up and down the plant’s aisles talking to people. Smith denied that was true, that he went to
lunch with everyone else, that he came back from lunch with everyone else, and
that he went immediately back to work.
Dykstra repeated that someone said Smith was walking up and down the
aisles talking to people. Smith again
told Dykstra this wasn’t true. Dykstra
replied that someone’s lying, and he would probably be back to see Smith, and
then left.
The following
morning, Supervisor Thomas53 called
Smith into his office and told him that he had told him at Three Mile that he
needed to stay in his own department, and he needed to tell him to stay in his
own department here at Northridge also.
Smith, January 4, 2008 Job Jeopardy Agreement
and Threat to Discharge
Shortly after
Smith’s transfer to Northridge in August 2007, he continued talking about the
Union with fellow employees, and also initiated a discussion about the
Within a week,
in late August or early September 2007, the meeting took place with Smith,
Nykamp, VanderLaan, and Three Mile shipping department employee Jeff
Westfall. Smith and Westfall complained
about Shipping Department Supervisor Fred Thomas. Smith also complained about the attendance
point system, shift hours, that disciplinary writeups received by employees
Glen Ockert and Tammy Weerstra were unfair, and that employees who came to talk
to Nykamp were fired. Nykamp said he
would look into the writeups, that he wasn’t aware of them, and that it wasn’t
true that he fired people who came to see him.54 The meeting lasted about 45 minutes. Nykamp testified that at the time of the meeting
he was aware that Smith was preparing a letter or newsletter about union issues
that stated that if employees came to talk to Nykamp they would be fired. Nykamp testified that he was aware of the
letter because Smith had given a copy of it to VanderLaan and Smith’s name was
on it.55
About a week
later, Nykamp stopped by Smith’s machine and said he wanted to follow up their
meeting, that he wanted Smith to know that he didn’t find either of the
writeups in personnel files, but he was on his way to Three Mile to talk to
“them.” Smith said he didn’t understand
why Ockert and Weerstra would lie about receiving the writeups, “but if they’re
not there, they’re not there.” Nykamp
said the was going to talk to “them” that day.
The next day, Balczak told Smith that he had seen Nykamp on the Three
Mile shop floor, but that he was told by Weerstra and Ockert that Nykamp hadn’t
spoken to them.
In late December
2007, Smith approached VanderLaan on the shop floor and told him that he owed
him an apology, that he had been avoiding VanderLaan, but his frustrations were
with Nykamp, not VanderLaan. VanderLaan
asked why Smith was frustrated. Smith replied
that it was because Nykamp was a two-faced liar. VanderLaan asked why Smith thought that. Smith responded that Nykamp was supposed to
investigate the disciplinary actions involving Weerstra and Ockert and he never
did, and that he didn’t believe anything Nykamp says. VanderLaan asked what made Smith think that
Nykamp hadn’t spoken to them. Smith
replied that he had looked into the situations personally and Nykamp never
talked to them.56
VanderLaan
reported the conversation to Nykamp, and Nykamp and VanderLaan decided to have
a meeting with Smith.57 Nykamp testified that he decided to have a
meeting with Smith to “understand why he was saying I was lying to him and why
he’s telling people that.” On Thursday,
January 3, 2008, VanderLaan asked Smith into his office, where the two of them
engaged in small talk for a few minutes.
A few minutes later, Nykamp also entered the office.
Nykamp said, “I
heard you called me a liar. Is that what
you’re telling people?” Smith responded,
“No, not yet. But you did lie to me. You told me you were going to talk to these
people, you were there, you never talked to them, you lied to me.” Nykamp replied that the writeups were not in
their files. Smith testified that he
told Smith that he had just read Ockert’s writeup, even though in reality he
had never seen such a writeup. Nykamp
then leaned across the round table they were all seated at and said to Smith in
a raised voice, “Then show it to me.”
Nykamp told Smith that if he wasn’t happy there, why didn’t he leave.58
At some point during the meeting, Smith talked about why the employees
needed a union, and accused Nykamp of treating union supporters differently
from other employees.59
At the end of
the meeting, Smith said that the conversation was “going nowhere,” and he
headed towards the door to leave. As
Smith was leaving, Nykamp said to Smith, “[I]t sounds like you’re not happy
here, and you need to make a decision.
Either stay here and be unhappy, or go someplace and be happy.”60
Smith responded, “I am quitting; I’m working on my exit strategy right
now.” Smith then left the office.61
During the
meeting, Smith’s voice was louder than Nykamp’s testimonial voice, but Smith
was not “screaming,” nor did he make threats, use profanity, or say anything
about hurting anybody or hurting himself.62 Nykamp also testified that his own voice was
“louder” during the meeting. VanderLaan
testified that at times during the meeting Smith appeared nervous, his hands
were shaking, his face red, and pupils dilated.
When asked about Smith’s gestures during the meeting, VanderLaan testified
that he thought they showed frustration, and were not threatening.
Following the
meeting, Smith returned to work for about 5 minutes, and then, upset over the
meeting, decided to leave work for the rest of the day. He received permission from his supervisor,
and left. Smith returned to work on
Monday, January 7.
Also after the
meeting, VanderLaan and Nykamp met with Yeomans and discussed their perceptions
of the meeting. VanderLaan told Yeomans
about his observations of Smith’s nervousness and agitation, and that his
biggest concern was Smith’s comment about an “exit strategy,” that he was concerned
about what this meant. Nykamp told
Yeomans that he was also concerned about the “exit strategy” comment, and
wondered what was meant by “exit strategy” and whether it could be a reference
to workplace violence.63 Yeomans suggested they put Smith on a job
jeopardy agreement (JJA) that would require him to attend counseling so there
could be an assessment as to whether there was a threat. Nykamp and VanderLaan agreed.
Prior to
recommending the JJA and after learning of the “exit strategy” comment, Yeomans
did not review Smith’s personnel file or attempt to further investigate the
incident by, for example, taking a statement from Smith. Yeomans testified that no employee had reported
to her that they were frightened by Smith, and Smith’s supervisor had not
reported any threats by Smith to others.
The Respondent made no effort at the time, or subsequently, to ascertain
from Smith what he meant by his exit strategy comment.64
When Smith
returned to work on January 7, he was called into a meeting in a conference
room, with VanderLaan and Yeomans. At
his request, Smith was allowed to bring fellow employee Ray Trujillo with
him. Yeomans read the JJA to Smith and
asked him to sign. Smith signed and
added the words “signed under threat of termination.” Yeomans told Smith that to avoid discharge he
didn’t need to sign the document, but simply live up to its terms in respect to
seeing a counselor at Morningstar Health, and following any recommendations
they make.
The JJA required
Smith to attend a counseling session at Morningstar Health, to comply with any
recommendations made by Morningstar Health, and to only return to work on
January 8, if Morningstar Health agreed that he was ready to return. The JJA also provided for discharge if the
Respondent determined that Smith failed to meet and maintain the requirements
of the agreement. Finally, the JJA
provided that the Respondent would pay for up to five sessions at Morningstar
Health, but that Smith would be responsible “for all other costs of treatment,
if deemed necessary.”
Smith complied
with the JJA, attended a session at Morningstar Health on January 7, was cleared
to return to work, and returned on January 8.
Morningstar referred Smith to Pine Rest Counseling for additional
sessions. Smith attended at least two
sessions at Pine Rest, which were covered by his health insurance except for a
$54 copay the first time and $34 the second.
Smith fulfilled the terms of the JJA, and then voluntarily quit his job
with the Respondent in February.65
Analysis and Conclusions
Alleged Impression of Surveillance
Complaint
paragraph 7 alleges that the Respondent’s newsletter of January 24, 2007,
created the impression of surveillance, and violated Section 8(a)(1). I found that the Respondent’s January 24,
2007 “Newsbreak” was distributed to employees, and contained a letter from
Nykamp which, among other things, stated, “I recently learned that several
individuals are encouraging others to consider a
“The test for determining
whether an employer has created an impression of surveillance is whether the employee
would reasonably assume from the statement that their union activities had been
placed under surveillance.” Flexsteel Industries, 311 NLRB 257
(1993). Employees should be free to
engage in union activities and express their sympathies without fearing that
management is “peering over their shoulders.”
The standard is an objective one, based on the perspective of a reasonable
employee. Evidence of actual
surveillance is not a necessary ingredient to proving such a violation. Flexsteel,
supra.
Here, the Respondent admits
the facts asserted as a violation, but, citing Bridgestone Firestone South Carolina, 350 NLRB 526 (2007), argues
in its brief that Nykamp simply informed employees in the newsletter what he
had been told by numerous employees, that is that some employees were engaged
in union activity and that such is not a violation. In fact, I found that a number of employees
had discussed the
Bridgestone, however, is inanalogous in a crucial respect, that is, that the
employer therein specifically mentioned in its missive that it learned about
the union activity from information provided to it by employees and thanked
employees for providing the information.
Here, Nykamp’s letter to employees simply informs them that he has
learned “that several individuals are encouraging others to consider a union .
. .,” and mentions nothing about the source of such information, leaving to employees
to speculate as to how the Respondent obtained the information. Indeed, in Bridgestone, supra at 527, the Board specifically held that “merely
informing employees that their coworkers have volunteered information about
ongoing union activities does not create an impression of surveillance, particularly
in the absence of evidence that management solicited that information.”
Here, as the Respondent
informed employees it had learned of the union activities of certain
individuals, but did not inform employees of a legitimate source for the information,
it left it to their speculation and, thus, employees could reasonably assume
their union activities were under surveillance.
See Park N Fly, Inc., 349 NLRB
132, 133 (2007). Under these
circumstances, I conclude that the circulation of Nykamp’s letter with the newsletter
violated Section 8(a)(1), as alleged in the complaint.
Employee Movement in the Plant
Complaint paragraph 8 pleads
that on January 16, 2007, at Three Mile, and on January 24, 2007, at
Northridge, the Respondent violated Section 8(a)(1) by imposing restrictions on
employee movement in the plants, in response to union activities. I found that on three occasions on two dates
in January 2007, supervisors instructed specifically Smith, and other shipping
department employees, to remain in their department during the workday, and
that this policy did not exist prior to those occasions. As found above, by that time the Respondent
was aware of the union organizational activity, and Smith was publicly
acknowledging his participation by wearing union insignia at work.
Here, the Respondent’s
institution of a new policy limiting the movement of shipping department
employees following the inception of union organizational activities interferes
with, coerces, and restrains employees in their exercise of Section 7 rights,
as alleged in the complaint. See FiveCap, Inc., 332 NLRB 943 (2000). Although not alleged in the complaint as an
8(a)(3) violation, and not discussed in the General Counsel’s brief in the
context of such a violation, I have also considered whether, under a Wright Line analysis, the Respondent’s actions
in specifically limiting Smith’s movement additionally violated Section
8(a)(3), and conclude that it does.66
Thus, I found that Smith was
active in union organizing, that the Respondent was aware of Smith’s union
activity and, based on the findings of other violations herein and the public
comments of Nykamp to employees, the Respondent displayed and maintained animus
towards the
Restricting Employee Bulletin
Board Use
Complaint paragraph 10 alleges that about
February 2, 2007, the Respondent violated Section 8(a)(1) by promulgating a new
rule prohibiting employee usage of employee bulletin boards for posting
arguments as to the
I found that in late
January/early February 2007, a prounion and, then, an antiunion letter were
posted on a Three Mile employee bulletin board, and that shortly thereafter, on
February 2, the Respondent removed the letters from the bulletin board and
replaced them with a memo announcing a new policy as to employee posting on the
board. The new policy, set forth in the
memo, specifically disallowed posting of “union/nonunion arguments,” stated
that adversarial material from either viewpoint would be removed, and required
the prior approval of management.
Previously, the Respondent had allowed employees to post materials of
their choice on the employee bulletin boards and did not require permission to
do such.
The Respondent, in its brief,
citing Register-Guard, 351 NLRB 1110
(2007), argues that it did not violate the Act as alleged in that the
Respondent’s new bulletin board restrictions were narrowly tailored to deal
with its perception that the prounion and antiunion posted letters had become
disparaging and personal, and that the restrictions applied equally to prounion
and antiunion postings. The General
Counsel, citing Fixtures Mfg. Corp.,
332 NLRB 565 (2000), maintains that inasmuch as the new restrictions allowed
postings as to virtually any other subject matter, their prohibition of
postings as to union arguments violated the Section 7 rights of employees. On this issue, the General Counsel did not
weigh in on the import of Register-Guard.
The Board, in Register-Guard, supra, a case factually
dealing with employee use of an employer’s email system for Section 7 purposes
and where the employer had instituted a rule that the email system was not
to be used to solicit or proselytize for commercial ventures, religious or
political causes, outside organizations, or other nonjob-related solicitations, adopted the rationale set forth by the
Seventh Circuit in Fleming Co., 349
F.3d 968, 975 (2003), and held that the rule did not violate the Act, unless it
was discriminatorily applied. The Board
ruled, apropos of the instant case, “we find no basis in this case to refrain
from applying the settled principle that, absent discrimination, employees have
no statutory right to use an employer’s equipment or media for Section 7
communications.” The Board dismissed the
8(a)(1) allegation as follows: “As the [rule] on its face does not discriminate
against Section 7 activity, we find that the Respondent did not violate Section
8(a)(1) by maintaining the [rule].”
Extrapolating to the instant case, the question remaining is whether the
Respondent’s rule, banning all argument as to the
In applying the Board’s
holdings and reasoning in Register-Guard,
I conclude that, in fact, the Respondent’s imposed bulletin board restriction
violates Section 8(a)(1) because it is discriminatory on its face. In Register-Guard,
the Board set forth this guideline for analysis of the legality of such
rules: “. . . in order to be unlawful,
discrimination must be along Section 7 lines. In other words, unlawful
discrimination consists of disparate treatment of activities or communications
of a similar character because of their union or other Section 7 protected
status.”
Section 7 protects employee
activities in support of a union, but also includes the right to refrain from
such activity. See BellSouth Telecommunications, Inc., 335 NLRB 1066 (2001). Employees have a Section 7 right to support
or oppose the advent of a union, if they so wish. The Respondent’s rule, here, precludes both,
at least in respect to bulletin board postings.
While the Respondent maintains in its brief, that it promulgated the new
rule simply to stop postings which contained personal attacks and
disparagement, it didn’t preclude such posts in the rule, or limit the rule to
any postings which contained such matter, or even mention such matter in the
rule, but explicitly directed the rule to postings containing “arguments” in
favor or opposed to the Union.68 By its language, the rule does not explicitly
ban postings which contain personal disparagement, but simply bans posts
containing arguments for against unions.
As such, the rule treats Section 7 protected posts differently from any
other, and is inherently disparate.
Accordingly, I conclude that
the Respondent’s imposition of the new bulletin board restrictions at both
plants violates Section 8(a)(1), as does the Respondent’s removal of such
postings pursuant to the rule, as alleged in the complaint. As the Board said in Fixtures Mfg. Corp., supra at fn. 3, a case cited by the General
Counsel, “The fact that prounion and antiunion materials were banned does
not warrant a contrary result. The important fact is that Sec. 7 material [pro
and con] was banned, and other material was permitted.”
Rules in Employee Conduct
Manual as Violations
Complaint paragraph 11(a)
alleges that the Respondent’s rule, contained in its employee manual, that
prohibits employees form “engaging in behavior designed to create discord or
lack of harmony” violates Section 8(a)(1).
I found that the Respondent’s employee handbook in effect at all times
material herein and since at least October 2004, contained the following as
prohibited conduct: “Malicious gossip
and/or spreading rumors; engaging in behavior designed to create discord or
lack of harmony.” The complaint only
alleges as a violation the portion following the semicolon.
The General Counsel argues in
its brief that the rule here is overbroad, that given a reasonable reading the
rule could be interpreted to prohibit protected activity in that employee union
activity, pro and con, had arguably created “discord” at the plant, and that
it, thus, violates Section 8(a)(1). The
General Counsel’s brief analogizes the instant rule to the Board decision in Southern Maryland Hospital, 293 NLRB
1209 (1989), where the Board held that a rule prohibiting “derogatory attacks”
to be unlawfully overbroad. The Respondent
maintains in its brief that its rule does not interfere with Section 7 rights
because its “language is sufficiently vague and ambiguous that it is not clear
that any reasonable employee would understand that this rule prohibits protected
activity.”
The
Board has held that an employer violates Section 8(a)(1) when it maintains a
work rule that by reasonable interpretation tends to chill employees in the
exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825
(1998). “If the rule does not explicitly restrict
activity protected by Section 7, the 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.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). Further, the Board instructs that in
determining the legality of the rule, it must be given a reasonable reading,
particular phrases should not be read in isolation, and there should not be a
presumption of improper interference with employee rights. Lafayette
Park Hotel, supra at 825, 827.
The General Counsel does not,
and could not, argue that the rule explicitly restricts Section 7
activity. Absent such explicitness, I
next examine the circumstances, as instructed in Lutheran Heritage Village-Livonia, to determine whether there was a
showing of any of the three factors mentioned above. In fact, the rule at issue was utilized as a
partial basis to discipline Balczak for his sarcastic remark to another
employee vis-à-vis Nykamp’s earlier antiunion argument. As found, that rule was highlighted in
disciplinary notices given to Balczak, and MacLaren told Balczak that his rule
violations were highlighted (or circled).
Balczak’s conversation or attempt at a conversation with a fellow
employee was clearly protected in that Balczak’s comments were directed at Nykamp’s
earlier antiunion propaganda. Thus,
inasmuch as the rule has been applied to restrict Section 7 rights, I conclude
that it tends to chill the exercise of Section 7 rights, and violates Section
8(a)(1).69
Complaint paragraph 11(b)
alleges that the Respondent’s rule prohibiting “unauthorized soliciting of
funds or distributing literature on company property” violates Section
8(a)(1). I found that the Respondent’s
employee handbook set forth the following as prohibited conduct and prescribed
discipline for violation: “Unauthorized
soliciting of funds or distributing literature on company property.”
Counsel for the General
Counsel, citing Our Way, Inc., 268
NLRB 394 (1983), argues, in her brief, that the Respondent’s
solicitation/distribution rule is facially overbroad and presumptively unlawful
in that it prohibits employees from engaging in solicitation during nonworking
time and contains no language “indicating to employees that they are free to
distribute materials or otherwise solicit while they are on breaks or on their
own time.” The Respondent mentions, but
does not argue, this issue in its brief.
I found that the disputed rule was maintained and enforced by the Respondent,
and I specifically found that the Respondent imposed discipline on Balczak, at
least partially for a violation of the rule.
The governing principle here
is that a rule is presumptively invalid if it prohibits solicitation on the
employees’ own time. Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945). I agree with counsel for the General Counsel’s
argument that the Respondent’s solicitation/distribution rule, which by its
terms prohibits any “unauthorized” solicitation or distribution on the
Respondent’s property without limitation as to time, is overly broad in that
the plain meaning of the rule would preclude such protected Section 7 activity
even during an employee’s nonworking time such as breaktime or before and after
work. Inasmuch as a reasonable
interpretation of the rule tends to chill employees in the exercise of their
Section 7 rights, I conclude that said rule violates Section 8(a)(1) of the
Act, as alleged. Lafayette Park Hotel, supra.
Nykamp’s February 21, 2007 Letter to Employees
Complaint
paragraph 12(a) alleges that Nykamp’s February 21 letter to employees solicited
grievances and impliedly promised remedies, in response to union activity. I found that the opening paragraph of
Nykamp’s February 21 letter distributed to employees contained the
following: “I continue to strongly believe
that union representation will negatively impact our communications, our
efforts to resolve problems together, and our ability to compete in a very
challenging industry. I remain open to
talking about this issue with any individual or group. I am eager to learn and understand the issues
and to work toward an acceptable resolution.
Please be willing to call me directly…and ask for an opportunity to
meet.”
Counsel
for the General Counsel’s brief does not argue which specific words or sentences
of Nykamp’s February 21 letter actually solicit grievances or imply a promise
of remedy, but only states as follows in respect to solicitation: “. . . Nykamp communicated to the employees
via the newsletter, specifically soliciting employees to approach him about a
particular topic—the union.” The
Respondent’s brief argues, essentially, that the Respondent has a past practice
and that given such, “no employee could construe this language as an explicit
or implicit promise to remedy solicited grievances.” It’s not clear which specific part of the
letter “this language” refers to.
The
principles relevant to deciding the validity of solicitation of grievances
allegations are well established, and have been summarized by the Board as
follows: “Absent a previous practice of
doing so . . . the solicitation of grievances during an organizational campaign
accompanied by a promise, expressed or implied, to remedy such grievances
violates the Act. [I]t is the promise, expressed or implied, to remedy the
grievances that constitutes the essence of the violation. [T]he solicitation of
grievances in the midst of a union campaign inherently constitutes an implied
promise to remedy the grievances. Furthermore, the fact an employer’s
representative does not make a commitment to specifically take corrective
action does not abrogate the anticipation of improved conditions expectable for
the employees involved. [T]he inference that an employer is going to remedy the
same when it solicits grievances in a preelection setting is a rebuttable
one.” Laboratory Corp. of
Further,
an employer who has had a past practice
and policy of soliciting employee grievances may continue to do so during an
organizational campaign. See, e.g., Lasco Industries, 217 NLRB 527, 531
(1975). It is well
established, however, that an employer cannot rely on past practice to justify
solicitation of employee grievances if the employer significantly alters its
past manner and methods of solicitation during the union campaign. House of Raeford Farms, Inc., 308 NLRB 568, citing Carbonneau Industries, 228 NLRB
597, 598 (1977).
Here,
counsel for the General Counsel, in her brief, concedes that the Respondent
has, prior to union activity, allowed “employees to bring workplace issues to
its attention, through a system called ‘Doughnuts with Dave,’ wherein employees
have breakfast with Nykamp and talk about work issues, and perhaps through one
on one meetings or conversations with Nykamp.” Counsel for the General Counsel
further argues, however, that the newsletter is a different medium from the
Donuts with Dave meetings, and that the newsletter invited employees “to approach
him about a particular topic—the union.”
The
General Counsel’s argument is not persuasive, here. For years the Respondent has regularly held
the Donuts for Dave meetings for the specific purpose of allowing interested employees
to bring up whatever work related issues they wished, including suggestions for
the workplace. Nykamp listened to the
suggestions and gave responses. Nykamp’s
missive in the newsletter simply invited employees to continue to do the same
thing, albeit without donuts. Further,
the wording of the “invitation” in the newsletter is somewhat ambiguous. It says that Nykamp “remains open to talking
about this issue . . . .” But the only
issue mentioned earlier in the letter is the issue of union representation, not
grievances as to workplace conditions.
Under
these circumstances, I conclude that the somewhat ambiguous invitation contained
in Nykamp’s letter of February 21, essentially repeats a practice that the
Respondent has engaged in for years, that is to provide a method for employees
to periodically meet with Nykamp and bring up whatever workplace concerns they
wish to. It is well established that an employer with
a past practice of soliciting employee grievances through an open door or
similar-type policy may continue such a policy during a union’s organizational
campaign. Wal-Mart Stores, 340 NLRB
637, 640 (2003). That’s what Nykamp’s
invitation consisted of, and I conclude that such did not violate Section
8(a)(1) as alleged.
Complaint
paragraph 12(b) alleges that Nykamp, in the same letter of February 21,
“solicited employees to report to management the union activities of coworkers
and threatened to discipline employees engaged in those activities.” I found that Nykamp’s letter contained the
following: “If you don’t want to sign a card, tell the person asking you that
you have no interest in signing a card.
If you feel pressured, coerced or harassed to sign a card, please report
the issue. We enforce our policy prohibiting
harassment of any kind.”
Counsel for the
General Counsel argues that the quoted passage violates Section 8(a)(1) in that
it conveys to employees that the Respondent “was interested only in finding out
and enforcing its harassment policy against employees . . . who attempted to
secure union authorization cards,” and that “an employee could reasonably have
believed that the Respondent was interested in the identity of those employee
who were passing out cards and not in uniformly addressing harassment.” The Respondent maintains that the quoted
passage encouraged employees to report any unlawful harassment, and “no reasonable
employee would interpret Nykamp’s statement about reporting coercion or
harassment to be a solicitation to report union activities,” or “a threat to
discipline employee engaging in protected concerted activity.” The Respondent does not argue that there were
any specific occurrences of harassment or coercion, prounion or antiunion,
which led to the passage in Nykamp’s letter.
The Board, in
considering 8(a)(1) allegations involving an employer’s appeal to employees to
report instances of being solicited to sign authorization cards, “has
frequently found unlawful employers’ statements that employees who harass or
pressure other employees in the course of union solicitations should be
reported to management, who will discipline the offending individuals or
otherwise take care of the problem.” Tawas Industries, 336 NLRB 318, 322
(2001). Such statements violate Section
8(a)(1) “because they have the potential dual effect of encouraging employees
to identify union supporters based on the employees’ subjective view of harassment
and discouraging employees from engaging in protected activities” (footnoted
citation omitted), id. But, when the
appeal explicitly only seeks reports of unprotected activity, there is no
violation. Champion Home Builders Co., 350 NLRB 788, 789 (2007).
In Champion, supra, the Board emphasized
that in Tawas, supra, where it found
a violation, the employer’s missive focused on words like “coercion,” words
that lent themselves to subjective interpretation by employees, as opposed to
less subjective terms such as “interference with plant production,” or threats
of harm or job loss used by the employer in Champion,
where the Board found no violation. In
dismissing the allegation in Champion,
the Board further relied on the employer’s explicit affirmation in the message
that it would respect the right of employees to solicit and argue for the
union.
Here, the
Respondent asked employees to report if they “feel pressured, coerced or
harassed . . . .” These are words that
lend themselves to subjective interpretation akin to the words in Tawas.
Nykamp’s letter containing the words repeats his antiunion views and is
part of the Respondent’s campaign against the
Ben Balczak
Complaint
paragraph 14 alleges that the Respondent violated Section 8(a)(3) by imposing
on Ben Balczak written reprimand/warnings on January 26 and March 22 and 27,
2007, by imposing a level III written reprimand/warning and 3-day suspension on
February 2, 2007, and by assigning Balczak to press operator duties on February
8, 2007. Complaint paragraph 9 alleges
that the January 26 reprimand/warning also independently violated Section
8(a)(1), as the discipline prohibited Balczak “from discussing terms and
conditions of employment with another employee.”
I found that
Balczak was active in the union organizing attempt including initially talking
about obtaining union representation with fellow employee Dave Smith in October
2006, meeting with a UAW organizer in December 2006 and subsequently speaking
to other employees about the Union including calling them at home, and wearing
a union pin to work beginning in late January or early February 2007. I further found that Balczak’s name was included
in the late January, early February 2007 anonymous flyer posted in the plant
naming union activists, and that Nykamp, VanderLaan, and other supervisors
learned that Balczak was a union organizing activist.
While the record
does not establish an exact date on, or by, which Nykamp or other managers
learned of Balczak’s union activity, I find that it occurred sometime in
January 2007, prior to January 24, the date that Nykamp’s signed antiunion newsletter
was distributed to employees by the Respondent.
Thus, Nykamp testified that he had about a hundred conversations in
January with employees, during some of which employees specifically named other
employees who spoke to them about the
January 26, 2007 Reprimand
Complaint
paragraph 14(a) alleges that the Respondent violated Section 8(a)(3) by imposing
a written reprimand on Balczak on January 26, 2007. I found that on January 26, the Respondent
imposed a level II disciplinary warning on Balczak as a result of a 2-minute conversation
Balczak initiated with fellow employee Andrea Olescewski during which they exchanged
views of the Union, Balczak pro and the other participant anti, and that the
Respondent informed Balczak that the discipline was imposed, in part, because
he violated the Respondent’s rule against “engaging in behavior designed to create
discord or lack of harmony,” a rule that I concluded violated Section
8(a)(1).
Counsel for the
General Counsel, citing Saia Motor
Freight Line, Inc., 333 NLRB 784 (2001), argues that because Balczak was
disciplined for violating a rule, which itself violated Section 8(a)(1), the
application of the rule is, de facto, a violation of Section 8(a)(3), and that
the imposition of the discipline also violates Section 8(a)(3) under a Wright Line71 analysis. The Respondent contends in its brief that at
the time of the discipline, the supervisor who imposed the discipline, Deering,
lacked knowledge of Balczak’s union activity, that there is insufficient
evidence of animus, and that the Respondent would have disciplined Balczak for
idling, even absent his union activity.
Inasmuch as I
found Balczak was engaged in union activity during the incident for which he
was disciplined, I conclude that the Respondent’s imposition of discipline on
January 26 violates Section 8(a)(3) as alleged in paragraph 14(a) of the
complaint. A Wright Line analysis is not necessary to reach this
conclusion. Register Guard, supra, slip op. at 11 (2007). Further, inasmuch as I already have concluded
that the rule under which Balczak was disciplined violates Section 8(a)(1), I
also conclude that Balczak’s discipline violated Section 8(a)(3).
The Respondent
contends that Balczak was disciplined for “idling,” but there is no evidence in
the record that the Respondent prohibited brief conversations between employees
during the workday. Indeed, the Respondent,
in its brief, concedes that “[i]t is not uncommon for employees to have brief
conversations on the floor.” Deering
testified that a minute of “idling” would probably not provoke him to issue
discipline, but that he might if it lasted 5 or 10 minutes. I found that Balczak’s conversation lasted
about 2 minutes.
Even applying Wright Line, I conclude that Balczak’s
discipline violated Section 8(a)(3).
Thus, I found that Balczak engaged in union activity, the Respondent was
aware of such,72 and the Respondent displayed
animus by Nykamp’s repeated written expression to employees of his opposition
to the
Finally, counsel
for the General Counsel maintains in her brief that the portion of Balczak’s
disciplinary writeup threatening further disciplinary action for “any future
incidents of this nature” violates Section 8(a)(1) because “it can only be surmised
that it was further union activity that was [being] prohibited.” Inasmuch as I have already found both the
rule and the discipline to be in violation of the Act, and will order appropriate
remedies, any additional findings and remedies would be duplicative. I, thus, decline to find this additional
violation as to the same discipline, as alleged in complaint paragraph 9.
February 2, 3-Day Suspension
Complaint
paragraph 15(a) alleges that on February 2, 2007, the Respondent imposed a
level III written reprimand/3-day suspension on Balczak in violation of Section
8(a)(3). I found that on February 2, at
Balczak’s request, Balczak and employee Huy Pham met on the plant floor by the
scrap hopper machines, that Balczak attempted to hand Pham some union-printed
materials which Pham declined, that Balczak told Pham she could read the materials
in the bathroom, that Pham declined and told Balczak she didn’t want anything
to do with “this,” and that the entire conversation took about 2 minutes. I further found that later that same day
MacLaren, with Yeomans present, imposed a level III 3-day suspension on Balczak
for the incident with Pham, told Balczak that the discipline was based on the employee
handbook and that his violations were circled (highlighted), and that among the
highlighted violations was the following: “Unauthorized soliciting of funds or
distributing literature on company property.”
Counsel for the
General Counsel, in her brief, argues that because Balczak was suspended for
violating an illegal no solicitation/distribution rule, the discipline violated
Section 8(a)(3), and that, in the alternative, applying a Wright Line analysis, the discipline would violate Section
8(a)(3). The Respondent generally
maintained that Balczak was disciplined for idling, other employees have been
disciplined for idling before and after the inception of union organizational
activity, and that the Respondent utilized its progressive discipline policy in
imposing the suspension.
Because the
Respondent imposed the suspension on Balczak, at least in part, because he
assertedly violated the Respondent’s no solicitation/distribution rule, a rule
which I concluded violated Section 8(a)(1), I conclude that said discipline
violates Section 8(a)(3) of the Act. “Any disciplinary action taken
pursuant to an unlawful no-solicitation rule is . . . unlawful, analogous to
the ‘fruit-of-the-poisonous-tree’ metaphor often used in criminal law.” Saia Motor
Freight Line, Inc., supra at 785
(citations omitted).
Further, I agree with counsel
for the General Counsel that even applying a Wright Line analysis, the result would be the same. Thus, I found that Balczak engaged in union activity,
the Respondent was aware of such at the time it imposed discipline, the
Respondent has demonstrated its antiunion animus as discussed herein, and that,
therefore, the burden switches to the Respondent to demonstrate it would have
suspended Balczak notwithstanding his union activity. For the reasons discussed above in respect to
Balczak, the Respondent failed to meet this burden.
February 8, Assignment to
Press Operator Duties
Complaint paragraph 15(b)
alleges that on February 8, 2007, the Respondent, in violation of Section
8(a)(3), assigned Balczak to press operator duties. I found that upon returning to work on
February 8 from the 3-day suspension, Balczak told MacLaren and Deering that if
they wanted to keep an eye on him, to reassign him to the job of “hanging
coils.” Balczak’s request followed
MacLaren’s comment that he didn’t want “you guys”74 to say anything to Pham going forward.75 Counsel for the General
Counsel, citing Nortech Waste, 336
NLRB 554 (2001), and other cases, argues that while employers have the general
right to assign the duties and jobs of employees, the Wright Line analysis should be applied, that sufficient evidence of
union activity, knowledge, and animus, has been presented shifting the burden
to the Respondent, and that the Respondent failed to meet that burden. The Respondent maintains that Balczak was
moved at his own request and, thus, would have been moved notwithstanding union
activity.
Here, the Respondent has the
more persuasive argument. Balczak’s
request to be reassigned to “hanging wire” followed MacLaren’s instruction to
not contact Pham about her apparent complaint to management about her conversation
with MacLaren and, logically, was a response to that instruction. In other words, Balczak, concerned about
being disciplined again, suggested that he be placed on a job where he would
not likely be accused of approaching Pham.
Even though Balczak suggested he be reassigned to wire hanging, there is
no dispute that his request initiated his reassignment by the Respondent,
albeit to operating a press. While
counsel for the General Counsel, in her brief, suggested that Balczak’s request
was “semi-sarcastic,” I find no support for such in his testimony. Thus, while I conclude that counsel for the
General Counsel has met her initial Wright
Line burden, I further conclude that the Respondent has demonstrated that
it acted on a request initiated by Balczak, and would have reassigned him notwithstanding
his union activity.76
March 22 Reprimand
Complaint paragraph 14(b)
alleges that the Respondent on March 22, 2007, imposed a written reprimand on
Balczak, in violation of Section 8(a)(3).
I found that on March 22 Deering imposed a level I reprimand on Balczak,
memorialized in a disciplinary action document signed by Deering and Hirdes,
which asserted that on February 19, Balczak produced certain parts, that when
the Northridge plant began to use the parts on March 20, it was discovered the
parts were mixed, and that Balczak needed to pay closer attention. I also found that when Balczak re-sorted the
parts, pursuant to Deering’s instructions, he found no mixed parts and reported
such to Deering. The only evidence
supporting the assertion upon which the discipline was based, that Balczak
produced mixed parts, is the hearsay testimony of Deering to the effect that an
unidentified employee in the Northridge quality control department so informed
Deering on the phone.
As to this allegation, the
counsel for the General Counsel contends that
she met her Wright Line burden
and demonstrated that Balczak’s union activity was the Respondent’s motivation,
and that the Respondent failed to meet its resultant burden of establishing
that it would have disciplined Balczak absent union activity. The Respondent maintains that it properly
disciplined Balczak for mixing parts, an offense for which it has frequently
disciplined other employees.
Under Wright Line, to demonstrate a violation of Section 8(a)(3), the
General Counsel is required to show by a preponderance of the evidence that animus
against protected conduct was a motivating factor in the employer’s
action. Once this showing has been made,
the burden shifts to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct. “To sustain his initial burden, the General
Counsel must show: (1) that the employee was engaged in protected activity; (2)
that the employer was aware of the activity; and (3) that the activity was a substantial
or motivating factor for the employer’s action.
Motive may be demonstrated by circumstantial evidence as well as direct
evidence and is a factual issue which the expertise of the Board is peculiarly
suited to determine.” Naomi Knitting Plant, 328 NLRB 1279
(1999) (citations omitted).
Here, as found, Balczak was a
prime union activist. By late January,
early February 2007, Balczak regularly wore a union pin to the plant each
payday. At about the same time, the list
was posted in the plant naming Balczak, among others, as a union activist.77 Nykamp had hundreds of
conversations with employees in January and February, during some of which the
employees named union activists. Further,
the Respondent was aware of the February 2 incident for which I concluded the
Respondent illegally suspended Balczak for attempting to provide union
literature to Pham. Finally, based on
the Respondent’s various violations of the Act found herein, and its other
expressions of antiunion sentiment including Nykamp’s missives to employees,
there is ample evidence from which to conclude that the Respondent displayed
antiunion animus. Thus, I conclude that
the General Counsel has sustained its Wright
Line burden.
I further conclude that the
Respondent has failed to meet its resultant burden. The only evidence produced by the Respondent
in support of its decision to discipline Balczak for the asserted mixed parts
offense is the testimony by Deering of a phone call with an unnamed employee in
quality control to the effect that there were mixed parts. There was no other evidence that, in fact,
Balczak caused mixed parts to be placed in a gondola. The quality control employee did not testify
and Deering’s testimony included nothing about observing the mixed parts. To the contrary, Balczak credibly testified
that when he re-sorted the parts he observed no mixed parts, and so informed
Deering.78 The Respondent’s quality audit log, a
document utilized by the Respondent in its business to record such and similar
errors, contains no specific entry for mixed parts on or near the date of March
20. Finally, Deering testified that he
didn’t know, and was never informed, as to how many alleged mixed parts there
were.
The failure of the Respondent
to produce a modicum of credible evidence in support of its assertion that
formed the basis of its discipline of Balczak is a factor that I have weighed
in reaching my conclusion that the Respondent has not met its burden and that
the discipline was pretextual. See, for
example, the Board’s findings in Signature
Flight Support, 333 NLRB 1250, 1251 (2001), where the employer failed to
produce credible evidence to support the asserted basis for discipline.
Further, while the record
contains evidence of disciplinary warnings imposed on other employees for mixed
parts or labeling errors, in at least one of those instances Deering, who testified
that he can exercise discretion in deciding whether or not to impose discipline,
decided to simply write a note to the file rather than impose discipline on an
employee who mislabeled parts because “[y]ou have had no other issues of this
nature currently in your file.”79 Deering’s discretion is borne out by the
testimony of press operator Segers to the effect that when he made a labeling
mistake, Deering simply spoke to him about it, but did not impose discipline.80 Deering further testified
that he had no personal knowledge that Balczak had ever operated a press before
his then current assignment and that Balczak had operated the press for less
than 2 weeks when the asserted mistake occurred. Under these circumstances, having concluded
that the General Counsel has met its Wright
Line burden, that the Respondent has fallen short, and that the evidence
demonstrates that the basis for Balczak’s discipline is pretextual, I conclude
that the discipline violates Section 8(a)(3) of the Act as alleged.
March 23 Reprimand
Complaint paragraph 14(c)
alleges that on March 27, 2007,81 the Respondent, imposed a
written reprimand on Balczak, in violation of Section 8(a)(3). I found that on March 23, Deering, with
Hirdes present, gave a level II disciplinary action memo to Balczak that stated
that on March 22 Balczak mislabeled right side parts as left side and that
there also were mixed parts. Balczak
signed the disciplinary memo, but testified that he did not agree that he had
either mislabeled or mixed the parts.
The discipline was imposed at level II because of the prior level I
discipline imposed on March 22. Both
counsel for the General Counsel and the Respondent, repeat essentially the same
arguments made as to the March 22 discipline allegation.
As concluded in respect to the
March 22 reprimand, and for the same reasons, the General Counsel has
established by a preponderance of the evidence that animus against Balczak’s
union activity was the Respondent’s motivation for the March 23
discipline. Thus, I’ve concluded that
Balczak participated in union activity, the Respondent knew that, and the
Respondent has displayed animus in respect to the activity.
I further conclude,
essentially for the same reason as in respect to the March 22 discipline, that
the Respondent has failed to demonstrate that it would have imposed discipline
on Balczak on March 23, even absent union activity. Thus, almost no evidence, beyond the
accusation and imposition of discipline, was presented to support the
Respondent’s assertion that Balczak mislabeled and mixed parts.
Under Wright Line, once the General Counsel has met his initial burden,
the Respondent must persuade that it would have imposed the discipline notwithstanding
the union activity. At a minimum, here,
that evidence should include something demonstrating that the violation for
which discipline was imposed, actually occurred. Yet the record contains little, if anything,
from which I could make such a conclusion.
Accordingly, I conclude that the Respondent has failed to meet its
burden to demonstrate that Balczak would have been disciplined even absent his
union activity, and that the Respondent violated Section 8(a)(3) as alleged in
paragraph 14(c) of the complaint.82
Glenn Gentz
I found that Gentz was
employed by the Respondent at Three Mile from 1993 until his discharge on March
27, 2007. Gentz, as opposed to Balczak
and Smith, was minimally involved in union organizational activity, including
speaking to fellow employees about the
February 21 Reprimand
Complaint paragraph 16 alleges
that the Respondent, on February 21, 2007, imposed a level I reprimand on Gentz
assertedly for an incident that occurred on February 19. I found that on February 19 Gentz, a hi-lo
operator, was assisting a press operator with a problem at a time when the
operation he had been working on was down, had walked to the back of the press
to observe its operation with a potato chip bag in hand, was approached by
Deering who told him that he should be checking parts on a different press, and
responded to Deering that the other press had been down. I found that when Deering handed Gentz the disciplinary
memo, Gentz explained he had been monitoring the press feed, and that Deering
responded that while that could be possible, he was going forward with the
discipline because there were other problems he wanted to correct, apparently
referring to asserted complaints form other employees as to Gentz, which I
found there was no evidence to support.
Counsel for the General
Counsel argues in her brief that Gentz was involved in union activity which the
Respondent was aware of or suspected because of the posting of the list, that
the basis of the discipline was unsupported by evidence, and that the
discipline was pretextual. The
Respondent, in its brief, maintains that Gentz was disciplined for cause, that
Deering observed Gentz idling during the February 19 incident and had received
reports of such from other employees, and that, in any case, the Respondent was
unaware of Gentz’ union activity, if any.
I agree with the Respondent
that there is insufficient evidence from which to conclude that the Respondent
had specific knowledge of Gentz’ minimal union activity of talking to other
employees about the union issue. But, I
further conclude, as maintained by the counsel for the General Counsel, that
the Respondent, in fact, perceived that Gentz was a union supporter, based on
the posting of the asserted supporter list in late January or early February
and the Respondent’s reaction to the posting.
As the Board has held, “In establishing that an employer’s opposition to
union activity was a motivating factor in an employer’s decision to discharge
an employee, it is . . . immaterial that the employee was not in fact
engaging in union activity as long as that was the employer’s perception and
the employer was motivated to act based on that perception.” Dayton
Hudson Department Store Co., 324 NLRB 33, 35 (1997) (emphasis contained in
original).
While the Respondent argues
that the list was posted anonymously, and was not, and could not be, utilized
by the Respondent to discern which employees were union activists, the words of
Vice President Manufacturing Dykstra to employees Segers and Bonnville, in
discussing their complaints about the posting of the list, belie the Respondent’s
defense. Thus, when Segers demanded of
Dykstra to know why his name was included on the list, Dykstra replied, “You
obviously were seen attending union meetings or talking up the union.” Dykstra added that if people weren’t happy
there, maybe the Respondent should see that they’re not working there, and that
people were going to have to earn back the Respondent’s trust. Further, in response to Bonnville’s complaint
about the list, Dykstra at first told him that he’d seen a list of 35 to 38 employees
who had attended union meetings. Rather
than disregarding the names posted on the list, Dykstra’s comments demonstrated
that the Respondent took the list, and the names contained therein, seriously.83
Applying Wright Line to this allegation, I conclude that the Respondent
perceived that Gentz was involved in union activity, that, for reasons
discussed above, the General Counsel has
demonstrated the Respondent’s displayed animus towards the
Thus, Deering testified that
the discipline was initiated because he observed Gentz standing by a press and
“[a]t the time I believe[d] he was idling.”
But when Deering presented the disciplinary warning to Gentz, and was informed
by Gentz that, in fact, he wasn’t idling but was assisting the press operator,
Deering, acknowledged Gentz’ response, but nevertheless went through with the
discipline, assertedly based on reports from other employees concerning Gentz’
work.
Deering’s testimony that “At
the time [that he observed Gentz] I
believe[d] he was idling” (emphasis supplied) implies that he accepted Gentz’
explanation that he was assisting the press operator. Indeed, there is no evidence to dispute
Gentz’ credible testimony that he was not, in fact, idling, but was assisting
the press operator by observing the operation of a malfunctioning machine. As noted earlier, in view of the lack of
supporting evidence and Deering’s inability on the stand to name the allegedly
complaining employees, I do not credit Deering’s testimony that other employees
complained about Gentz. Under these
circumstances, with there being no credible basis for the Respondent’s
discipline of Gentz, I conclude that the Respondent has failed to meet its
burden, and that the discipline was pretextual.
Accordingly, I conclude that the imposition of the reprimand on Gentz
violated Section 8(a)(3) as alleged in paragraph 16 of the complaint.
March 27 Discharge
Complaint paragraph 17 alleges
that on March 27, 2007, the Respondent discharged Gentz in violation of Section
8(a)(3). Counsel for the General Counsel
argues that she has met her Wright Line
burden for the reasons set forth above as to Gentz’ February 21 discipline, and
that because the evidence demonstrates that the discharge was pretextual, the
Respondent has failed to carry its burden that it would have discharged Gentz
absent union activity. The Respondent
maintains that the General Counsel failed to meet his initial burden because
Gentz’ union activity, if any, was minimal, because there is insufficient
evidence that the Respondent had knowledge of Gentz’ union activity, and because
animus was not proved. The Respondent
also maintains that even if it’s found that the General Counsel met his burden,
the Respondent has demonstrated that it would have discharged Gentz
notwithstanding his union activity.
For the reasons set forth
above, including Gentz’ name appearing on the posted list, and the Respondent’s
reaction to the list as illustrated by Dykstra’s comments, I conclude that the
Respondent perceived that Gentz was a union activist. Whether or not Gentz engaged in union activity,
or the extent thereof, is immaterial because the Respondent perceived Gentz as
an activist. Dayton Hudson Dept. Store Co., supra at 35. As further discussed above, I also conclude,
based on Nykamp’s comments in the Respondent’s newsletters and the various
other violations found herein, that the Respondent maintained animus towards
union activity. Thus, I agree with the
counsel for the General Counsel, that she has met her initial Wright Line burden.
I further conclude that the
Respondent has failed to meet its burden of demonstrating that it would have discharged
Gentz even absent its perception of his union support because the evidence is
compelling that Gentz’ discharge was pretextual. Gentz was employed by the Respondent for
about 14 years and, according to Yeomans, had no prior disciplinary record for
threatening behavior or issues with other employees. Yeomans testified that she didn’t bother to
look at Gentz’ personnel file after the incident was reported to her.
Objectively viewing the
evidence the Respondent itself gathered in its investigation, the initial
incident with Calderon was, at worst, a 50/50 proposition, with both apparently
and approximately equally at fault (Gentz could have sounded his horn; Calderon
could have watched where he was walking).
The resulting incident also showed equal parts of blame; Calderon should
not have returned to the scene to make additional sarcastic comments to Gentz,
and Gentz should not have touched Calderon.
Gentz engaged in no threats, pokes, or other physical acts against
Calderon (nor did Calderon against Gentz).
Further, while the
Respondent’s counsel asserts in his brief that “RVI disciplined Gentz for
violating the Workplace Violence Policy,” and MacLaren testified that he told
Gentz he was being discharged for “physical intimidation or threatening,”
Yeomans testified that he was also discharged because he lied about the
incident, and that the lie consisted of not mentioning to Hirdes and MacLaren,
during the investigation, that he had touched Calderon. The Respondent does not contend, in its
brief, that Gentz was discharged for any reason other than the incident with
Calderon, although it does state the Respondent’s belief that Gentz was not
truthful because he did not mention that he touched Calderon.
I am not persuaded that Gentz
lied to the Respondent during its investigation of the incident, or that such
presented a legitimate basis, or additional basis, for its decision to discharge
Gentz. Hirdes and MacLaren, in their
investigation of the incident, simply asked Gentz what happened and never asked
Gentz whether he touched Calderon. The
first time the Respondent made the assertion to Gentz that to touched Calderon,
at the discharge interview, Gentz immediately admitted physical contact with
Calderon.
The Respondent argues that
neither Hirdes nor MacLaren specifically asked Gentz whether he touched
Calderon because the Respondent’s normal investigative practice is not to ask
specific questions, just general questions such as “what happened?” or “did
anything else happen?” Yet MacLaren testified
that he specifically asked Gentz during the interview whether any words were exchanged
between Gentz and Calderon. Based on the
asking of the specific question, and the concomitant failure to ask the more
relevant specific question of whether there was any physical contact between
the two, it appears that the Respondent was more interested in constructing a
pretext for discharge, rather than an objective investigation of what
occurred. Further evidence of this
intent includes the logistics of the investigation, i.e., multiple
solicitations of versions of the incident from Calderon and Birhanu before
Gentz was even contacted.
Finally, the evidence of the
Respondent’s past practice in dealing with incidents of violence or work
conflict in the workplace, does not show a pattern that would place the
treatment of Gentz within the norm as is argued by the Respondent, but instead
tends to show disparate treatment. The Respondent cites eight examples of
employees suspended solely for inappropriate or threatening language, and in
one case discharged for “less egregious behavior,” involving a verbal
altercation “when management could not verify that any physical confrontation
occurred.” But none of those cited
instances is analogous to the Gentz discharge.
The discharge cited by the Respondent involved an employee who had been
repeatedly previously disciplined for workplace behavior problems, prior to discharge. Gentz had no such previous discipline. None of the other nine instances of
discipline cited by the Respondent involved discharge.
Counsel for the General
Counsel, in her brief, cites evidence of
previous discipline imposed on various employees as examples of the
asserted disparate treatment of Gentz.
These include a level II written reprimand that the Respondent imposed
on Martha Hernandez on January 25, 2008, for an altercation with another
employee that involved pushing, a level III 3-day suspension up to 3 days imposed
on employee Phil Harrington on May 3, 2007, for threatening another employee
with a beating, a level III 1-day suspension imposed on employee Craig Eastman
on July 19, 2004, for physical contact with and inappropriate language to
another employee, and a level III 3-day suspension imposed on employee Mike
Long on October 24, 2007, for threatening to harm other employees and himself
in circumstances where he had made similar threats in the past.
Two of the four incidents
cited by the General Counsel involve altercations that included physical
contact and inappropriate language. The
other two involved direct threats of physical harm to other employees. All of these incidents seem more severe than
the Gentz-Calderon confrontation during which Gentz pulled on Calderon’s shirt
and there were no threats of violence or improper language. The Respondent argues in its counsel’s brief
that incidents that occurred before Yeomans was hired as HR manager in October
2004, should not be used for comparison to Gentz’ discharge. But the incidents cited above all occurred
after Yeomans was hired, except for the Eastman discipline, which was initiated
by HR Generalist Hirdes, a principal player in the Gentz discharge.
The Eastman disciplinary
action form, generated by Hirdes, states that the Respondent imposed a 1-day
suspension and demotion on Eastman and specifies the following in the management
comment section, “You used inappropriate language and made physical contact
with a coworker which is clearly unacceptable behavior.” The Respondent maintains, in its brief, that
the Eastman discipline is distinguishable because both employees involved were
disciplined, that Eastman admitted he pushed the other employee, did not try to
conceal what occurred, and apologized to the other employee.
The Eastman occurrence
factually resembles the Gentz/Calderon confrontation in that it involved a low
level of physical contact, but the
Respondent’s disciplinary memo to Eastman also asserts that he used inappropriate
language, which is absent in the Gentz incident. I find that the Eastman incident, for which
he received a 1-day suspension and demotion, to be approximately comparable to,
if not more severe than, the Gentz/Calderon incident, for which Gentz was
discharged. As discussed above, I do not
find that Gentz lied to the Respondent about the incident. I also find the other incidents cited by the
counsel for the General Counsel, and discussed above, to be approximately
comparable to the Gentz incident, but for which the Respondent imposed discipline
less severe than discharge. Such
disparate treatment is a factor to be considered in deciding unlawful
motivation. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004). Based on the above, I conclude that the
Respondent has failed to meet its burden of demonstrating that it would have discharged
Gentz even absent its perception of his union activity. Accordingly, I conclude that the Respondent’s
discharge of Gentz violated Section 8(a)(3) of the Act, as alleged in complaint
paragraph 17.
Smith, Job Jeopardy Agreement
and
Threat to Discharge.
Complaint paragraph 18 alleges
that on January 7, 2008, the Respondent required Dave Smith to enter into a job
jeopardy agreement (JJA) in violation of Section 8(a)(3), and that the JJA
required that Smith attend counseling sessions, that he comply with any recommendations
of the counseling agency, that he be off work on January 7, 2008, and that he
be responsible for any costs associated with counseling sessions. The JJA provided that if the Respondent determined
that Smith failed to meet and maintain the JJAs requirements, his employment
would be terminated.
Complaint paragraph 13 alleges
that about January 3, 2007, Nykamp threatened employees with discharge because
of their activities on behalf of the
I found that Smith had been
employed by the Respondent since July 1997, except for a 9-month period beginning
in July 2000. I further found that Smith
was a prime union activist, that he originated contact with the Union, that
Smith talked to other employees in support of the Union including calls to
their homes, that he wore a UAW T-shirt to work each payday and a UAW pin other
days, that he distributed union literature to employees at shift break from the
sidewalks by the Three Mile and Northridge plants, that he was cautioned twice
by management to stay in his own department,84 that Yeomans told Nykamp that Smith and Balczak were encouraging
union sign-up, and that shortly after he transferred to the Northridge plant in
August 2007, he told Plant Manager VanderLaan that “we will continue our union
organizing efforts.”
Counsel for the General
Counsel contends that under a Wright Line
analysis, she has demonstrated that Smith participated in union activity, that
the Respondent was aware of such, that the Respondent’s animus was demonstrated
by the various other illegal actions engaged in as part of its campaign against
union organization, and that the Respondent has failed to show that it would
have placed Smith on the JJA absent his union activity. The General Counsel further argues that because
Smith was discussing issues involving union activity during the January 3
meeting with Nykamp and VanderLaan, and was disciplined for the discussion, the
discipline violated Section 8(a)(3).
Further, citing American Steel Erectors, 339 NLRB 1315
(2003), the General Counsel maintains that because the Respondent imposed the
discipline for Smith’s actions in the course of protected activity, the
appropriate test for a violation should be whether Smith’s actions or words
during the discussion were so severe or egregious as to remove them from the
Act’s protection. Finally, citing Bell Burglar Alarms, Inc., 245 NLRB 990
(1979), counsel for the General Counsel posits that in the circumstances here,
an invitation to quit constitutes an implied threat of discharge for union activity.
Contrariwise, the Respondent
argues that the General Counsel has failed to prove animus, that the Respondent
has demonstrated that Smith was placed on the JJA because of his words and
actions not involving the
Initially, I conclude that the
subject matter of the January 3 meeting attended by Smith, at VanderLaan’s
instruction, and by VanderLaan and Nykamp, directly and indirectly involved
Smith’s union and associated activity, and that the meeting arose out of such
activity. The genesis of the January 3
meeting was the earlier meeting in late August or early September, 2007, to
which Smith was invited after telling VanderLaan that there were unresolved
issues and that union organizing activities would be continuing. The January 3 meeting was generated because
Nykamp was upset that Smith referred to Nykamp as being a liar.
But, Smith called Nykamp a liar because Smith believed that Nykamp had
failed to follow through on assurances made at the earlier meeting in respect
to Smith’s complaint as to the discipline of two employees, a complaint raised
in the context of why employees wanted a
The January 3 meeting, thus,
arose out of a prior meeting in August/September during which union or
protected activity was discussed, a subsequent discussion between Smith and
Nykamp as to Nykamp’s followup to the earlier meeting, and Smith’s “liar”
comment to VanderLaan concerning Nykamp’s follow-up. At the January 3 meeting, Smith talked about
why employees needed a union and his view that Nykamp treated union supporters
differently. Smith did not use the
“liar” epithet at this meeting.
The common thread to all of
these events involved Smith’s actions in furtherance of union organization,
including telling VanderLaan that there were still problems and he was going to
continue with union organization, telling Nykamp what the problems were
including the discipline of two employees, complaining about Nykamp’s perceived
failure to follow up as to the discipline, and accusing Nykamp of treating
union supporters differently. Section 7
activity was integral to all of these meetings, and carried with it its normal
protection.
I agree with the
General Counsel that Nykamp’s invitation to Smith, a prime union activist, to
the effect that if he wasn’t happy there, he should find another job, constituted
a threat of discharge, and I agree that in the context of the protected activities
discussed above, the threat was directed at those activities. The Respondent’s argument, in its brief, that
“no reasonable person could construe” Nykamp’s invitation to be a threat is not
persuasive and, indeed, the Board has viewed such statements to be a threat of
discharge. See Bell Burglar Alarms, Inc., supra at 990, where the Board
interpreted a similar invitation from an employer’s owner as conveying a threat
of discharge. Accordingly, I conclude
that the Respondent violated Section 8(a)(1) of the Act as alleged in complaint
paragraph 13.
The Respondent’s
argument that “Nykamp’s comments to Dave Smith were specifically related to
Dave Smith calling Dave Nykamp a liar,” and unrelated to any union activity, is
simply not borne out by the evidence and the context. As found above, the entire context of both
meetings involved the union organizational attempt. More specifically, at the January 3 meeting,
where Nykamp’s comments occurred, Smith told Nykamp why the employees wanted a
union and accused Nykamp of treating union supporters differently. The evidence is persuasive that rather than
simply being a response to the “liar” epithet, which was not used at the
January 3 meeting, Nykamp’s invitation for Smith to work somewhere else was
generated by Nykamp’s frustration at Smith’s continuing union activity and
associated complaints to Nykamp.
Finally, I
reject the Respondent’s assertion in its brief that implies that because “Smith
did not feel threatened during this meeting,” Nykamp’s comment cannot be
construed as a threat. The Board does
not judge the legality of such comments based on the subjective reaction of the
recipient. “The legality of an employer’s conduct does not turn on whether the
employee feels threatened.” Bell Burglar Alarms, Inc., supra at
990. Accordingly, I conclude that
Nykamp’s invitation to Smith to look for work elsewhere constituted a threat to
discharge, and violated Section 8(a)(a1), as alleged in complaint paragraph
13. See also, Hoytuck Corp., 285 NLRB 904 (1987).
I further conclude that the
Respondent’s imposition of the JJA on Smith violated Section 8(a)(3) because
the Respondent imposed the JJA based on Smith’s words and actions during the
course of Smith’s protected activity during the January 3 meeting, which were
part of the res gestae of union activity.
Nothing that Smith said or did at the meeting was so egregious as to
remove the mantle of protected activity.
Thus, Smith did not use the epithet “liar” during the January 3 meeting,
and the Respondent does not assert, or argue in its brief, that he was placed
on the JJA for such. Instead, the Respondent
maintains that Smith’s usage of the phrase “exit strategy” combined with his
actions during and immediately after the meeting removed Smith’s actions from
Section 7 protection, and led the Respondent to become fearful of Smith’s
behavior and to place him on the JJA.
The Respondent, in its
counsel’s brief, citing Tenneco Packaging,
Inc., 337 NLRB 898 (2002), argues that it did not violate Section 8(a)(3)
by imposing the JJA on Smith, because it acted over concern as to Smith’s usage
of the “exit strategy” phrase and Smith’s “incoherent statements, gestures, red
face and dilated pupils.” I note that Tenneco involved a Wright Line analysis in which the Board affirmed the judge’s
conclusion that the General Counsel failed to show that union activity was a
motivating factor, and the employer established that it would have taken the
same action even in the absence of union activity. In reaching his conclusions, the
administrative law judge wrote as follows:
I have resolved the question
of whether Respondent acted in good faith or out of animus towards union
organizational efforts on the basis of the factual record before me. That
record includes testimonial evidence relating to McClain’s behavior, evidence
establishing an emergency involuntary admission of McClain to the Charter
Rivers Behavioral Health Systems facility located in Lee County, South
Carolina, and an Order of a Probate Court finding, inter alia, that McClain was
mentally ill and that there “is a likelihood of serious harm to himself or
others.”
The
administrative law judge, further, found that the employee involved had a past
history of anger, anger management problems, and unusual actions in the plant.
Here, there is
no evidence that Smith had a history of violence in the plant, anger management
problems, threats to others, or a history of irrational behavior. Instead, the Respondent relies on Smith’s
“exit strategy” comment and his reddened face, dilated pupils, and gestures
during the January 3 meeting. The
Respondent, in its counsel’s brief, also asserts that Smith, “began chattering
about various random and seemingly disconnected topics, became increasingly
agitated, and refused to look at either Dave Nykamp or Ron VanderLaan.”
Upon a careful
review of the evidence as to Smith’s behavior and words at the January 3
meeting, I conclude that there was minimal objective evidence from which the
Respondent could conclude that Smith presented a danger to others or to
himself. I found that, in fact, Smith
was not speaking in tongues or randomly “chattering.” Further, the fact that Smith’s face may have
reddened or that his pupils dilated may simply have been an indication that the
meeting was somewhat tense or that Smith was nervous in a somewhat confrontational
meeting with the Respondent’s owner. In
sum, I do not find that Smith’s words and conduct, viewed objectively, rose to
a level that was threatening. Further,
when considered along with factors such as there being no evidence that Smith
had any history of violence, or threats, or similar behavior, and the animus
displayed by the Respondent against union activity, including its prior actions
limiting Smith’s movements within the plant(s), I conclude that the Respondent
was motivated to place Smith on the JJA by his role in union organizing, and
not by his actions and words on January 3, which were merely a pretext. Neither Smith’s words or actions, or both,
rose to a level of egregiousness or severity so as to remove the Act’s
protection from his conduct.
The above
analysis finding a violation is based on my conclusion that Smith’s actions and
words on January 3 were part of the res gestae of protected activity and that
he was disciplined therefor. However,
even applying a Wright Line analysis,
I would come to the same conclusion.
Thus, Smith was a prime union activist, the Respondent had knowledge of
such, and had previously displayed its animus to union organizational activity
in general and to Smith’s in particular.
For the reasons discussed above, including the pretextual nature of the
asserted reasons, the Respondent failed to show it would have placed Smith on
the JJA even absent his union activity.85 Thus, under Wright Line, I would also conclude that the Respondent’s imposition
of the JJA on Smith violated Section 8(a)(3) of the Act.
Conclusions of Law
1.
The Respondent is engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2.
The
3.
By discharging Glenn Gentz on March 27, 2007, and imposing on Gentz on February
21, 2007, a written reprimand/warning, by imposing a Job Jeopardy Agreement
(JJA) on Dave Smith on January 7, 2008, and by placing restrictions on Smith’s
movements within plants on January 16 and 24, 2007, and by issuing written reprimands/warnings
to Ben Balczak on January 26 and March 22 and 23, 2007, and a written
reprimand/warning and 3-day suspension on February 2, 2007, the Respondent has
been discriminating in regard to the hire or tenure or terms and conditions of
employment of its employees, thereby discouraging membership in a labor organization
in violation of Section 8(a)(3) of the Act.
4.
By the following actions on the dates set forth below, the Respondent has
interfered with, restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of
the Act:
(a)
On January 24, 2007, created the impression among its employees that their
union activities were under surveillance.
(b)
On January 16 and 24, 2007, placed restrictions on employee movements in its
plants in response to employees’ union activities.
(c)
On February 2, 2007, promulgated a rule prohibiting the usage of employee
bulletin boards at Three Mile and Northridge for posting “union/nonunion
arguments,” and removed said materials from the Three Mile bulletin board.
(d)
Since on or about August 22, 2006, maintained an employee manual containing
rules that prohibited employees from:
(1)
Engaging in behavior designed to create discord or lack of harmony.
(2)
Unauthorized soliciting of funds or distributing literature on the Respondent’s
property.
(e)
On February 21, 2007, solicited employees to report to management the union
activities of fellow employees and impliedly threatened to discipline employees
engaged in those activities.
(f)
On January 3, 2008, threatened employees with discharge because of their activities
on behalf of the
5.
The unfair labor practices set out above in paragraphs 3 and 4, affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6.
The Respondent, in no manner other than that specifically found herein,
including any other manner alleged in the complaint, has violated the Act.
The Remedy
Having
found that the Respondent has engaged in certain unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act, it will be ordered to cease and desist
therefrom and from any like or related conduct.
Having found that the Respondent discharged Glenn Gentz in violation of
Section 8(a)(3), it will be ordered to offer him immediate and full reinstatement
to his former position of employment or, if that position is no longer
available, to a substantially equivalent one without prejudice to his seniority
or any other rights or privileges he may have previously enjoyed and make him
whole for any loss of earnings and benefits he may have suffered by reason of
the Respondent’s discrimination against him.
Backpay will be computed in accordance with the Board’s decision in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons
for Retarded, 283 NLRB 1173 (1987).
Further the Respondent will be ordered to remove from its files any references
to the unlawful discharge and notify Gentz that it has done so and will not use
the discharge against him in any way.
Having
found that the Respondent imposed a Job
Jeopardy Agreement (JJA) on Dave Smith and a 3-day suspension on Ben Balczak,
both in violation of Section 8(a)(3), it will be ordered to make them whole for
any loss of earnings and benefits they may have suffered and medical expenses
Smith may have paid by reason of the Respondent’s discrimination against them,
and to remove from its files any references to the imposition of the Job
Jeopardy Agreement (JJA) on Smith and suspension on Balczak, and notify them
that it has done so and that it will not use the discipline against them in any
way. Backpay shall be computed as set
forth above.
Having
found that the Respondent imposed written reprimands/warnings in violation of
Section 8(a)(3) on Ben Balczak and Glenn Gentz, it will be ordered to remove
any references to the discipline from its files, notify Balczak and Gentz that
it has done so, and that it will not use the written reprimands/warn-ings
against them.
It
will also be ordered that the Respondent post a remedial notice.
On
these findings and conclusions of law, and on the entire record, I issue the
following recommended86
ORDER
The
Respondent, Ridgeview Industries, Inc.,
1.
Cease and desist from
(a)
Creating the impression among its employees that their union activities are under
surveillance.
(b)
Imposing restrictions on employee movement in the plant in response to employees’
union activities.
(c)
Promulgating, maintaining or enforcing rules prohibiting the posting of
materials containing union/nonunion arguments or information on employee
bulletin boards, or removing such materials from the bulletin boards.
(d)
Promulgating, maintaining, or enforcing rules that prohibit employees from
engaging in behavior designed to create discord or lack of harmony, or unauthorized
soliciting of funds or distributing literature on company property.
(e)
Soliciting employees to report to management the union activities of coworkers
and threatening to discipline employees engaged in those activities.
(f)
Discharging, or otherwise imposing discipline on employees because of their
actual or suspected participation in union activities.
(g) In
any like or related manner restraining, coercing, or interfering with employees
in the exercise of their Section 7 rights, or discriminating against them in
order to discourage membership in a labor organization.
2.
Take the following affirmative action necessary to effectuate the policies of
the Act.
(a)
Within 14 days from the date of this Order, offer full reinstatement to Glenn
Gentz to his former job, or if that job no longer exists, offer him a substantially
equivalent position, without prejudice to his seniority and other rights or
privileges previously enjoyed.
(b)
Make whole Glenn Gentz, Ben Balczak, and Dave Smith for any loss of earnings
and other benefits suffered as a result of the discrimination against them, and
Smith for any medical expenses he paid as a result of the discrimination
against him. Backpay is to be computed
as set forth in the remedy section of this decision.
(c)
Within 14 days from the date of this Order, remove from its files any reference
to the discharge and disciplinary warnings/reprimands set forth above of Glenn
Gentz, the Job Jeopardy Agreement (JJA) imposed on Dave Smith, and the suspension
and disciplinary warnings/reprimands set forth above of Ben Balczak, and notify
each of them in writing within 3 days thereafter that this has been done and
that evidence of the unlawful actions will not be used against them.
(d)
Preserve, and within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Regional Director, all payroll records, social security payment
records, timecards, personnel records, and reports, and all other records,
including electronic copy of the records if stored in electronic form,
necessary to analyze the amount of backpay due under terms of this Order.
(e)
Within 14 days after service by the Region, post at its Three Mile and Northridge
facilities copies of the attached notice marked “Appendix.”87
Copies of the notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s authorized representative,
shall be posted by the Respondent 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 Respondent to ensure that the
notices are not altered, defaced, or covered by any other materials. In the event that, during the pendency of the
proceedings, the Respondent has gone out of business or closed the facility
involved in this proceeding, the Respondent shall duplicate and mail, at its
expense, copies of the notice to all employees and former employees of the
Respondent at any time since August 22, 2006.
(f)
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.
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 create among our employees
the impression that their union activities are under surveillance.
We will not impose new restrictions on
employee movement in our plants in response to employee union activity.
We will not prohibit employees from
posting notices, letter, or other nonthreatening materials pertaining to union
or protected concerted activities on the plant bulletin boards that are
available for other employee uses.
We will not promulgate, maintain, or
reiterate rules against employees (1) engaging in behavior designed to create
discord or lack of harmony, or (2) soliciting during nonwork time such as
breaks or before or after their shifts, or (3) distributing literature in
nonwork areas during nonworktimes.
We will not solicit employees to report
to management the union activities of other employees, or threaten to
discipline employees engaged in said activities.
We will not discharge employees, or issue
disciplinary warnings, reprimands, suspensions, Job Jeopardy Agreements (JJA),
or other forms of discipline, or restrict movement in our plants because of
employees’ union activities.
We will not in any like or related manner
restrain, coerce, or interfere with employees in the exercise of their Section
7 rights, or discriminate against them in order to discourage membership in a
union, or activities on behalf of a union.
We will, within 14 days from the date of
the order, offer full reinstatement to Glenn Gentz to his former position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make whole Glenn Gentz, Ben Balczak
and Dave Smith whole for any loss of earnings and benefits suffered as a result
of our discrimination against them, with interest.
We will reimburse Dave Smith for
out-of-pocket costs he incurred as a result of our discriminatory imposition of
a Job Jeopardy Agreement (JJA), with interest.
We will, within 14 days from the date of
this order, rescind the unlawful disciplinary warnings and suspension issued to
Ben Balczak, the unlawful Job Jeopardy Agreement (JJA) imposed on Dave Smith,
and the unlawful disciplinary warning and discharge of Glenn Gentz, remove any
references to such in our files, and advise Balczak, Smith, and Gentz that such
has been done, and that the discipline will not be used against them in the
future.
Ridgeway Industries, Inc.