Case Information
*1 Before R IPPLE , E VANS and W ILLIAMS , Circuit Judges . R IPPLE , Circuit Judge.
In this petition, Brandeis Machinery & Supply Company (“Brandeis” or the “Company”) seeks review of an order of the National Labor Relations Board (“NLRB” or the “Board”). The NLRB determined that Brandeis had violated the National Labor Relations Act (“NLRA” or the “Act”), 29 U.S.C. § 151 et seq., with respect to actions taken in response to union-organizing activities at its South Bend, Indiana facility. Brandeis timely petitioned for review of the Board’s order, and the NLRB and the intervener, International Union of Operating Engineers (the “Union”), filed a cross-application for enforcement of the order. For the reasons set forth in this opinion, we deny the petition for review and grant enforcement of the Board’s order.
I BACKGROUND A. Facts
Brandeis sells and services heavy construction and mining equipment throughout Kentucky and Indiana. The Com- pany is nonunion and explains its approach to “employee relations” at length in its employee handbook:
We, as a Company, prefer to deal with people directly rather than through a third party. This is a non-union organization. It always has been and it is certainly our desire that it always will be that way. . . .
. . . . You have a right to join and belong to a union and you have an equal right NOT to join and belong to a union. If any other employee should interfere or try to coerce you into signing a union authorization card, please report it to your Supervisor and we will see that the harassment is stopped immediately.
A.R. Vol. III, General Counsel’s (“G.C.”) Ex.7 at 16.
In early 2000, Brandeis took steps to open a small branch office and service shop in South Bend, Indiana. Sam Free- man was chosen to be the manager for the office. Freeman hired Tom Muraski as the product support manager in charge of parts and service. From mid-2001 through Febru- ary 2002, Freeman and Muraski interviewed and hired employees for the South Bend facility.
In December 2001, Muraski interviewed Bob Cook for the position of shop mechanic. [1] During the interview, Muraski inquired what union represented the employees at Cook’s former employer. Muraski then told Cook that Brandeis was a nonunion company and that he could not foresee the Company going union in the future. Additionally, Muraski asked Cook how he felt about working for a nonunion company.
Muraski also interviewed Steve Benefield for the position of field service mechanic. Benefield was a long-time mem- ber of the Union and, like Cook, had been informed of the position at Brandeis through a Union organizer. Muraski did not inquire about Benefield’s union membership during the initial interview. However, when Benefield was called back to interview with both Muraski and Freeman, Freeman recounted the history of Brandeis and told Benefield that Brandeis was nonunion and that Brandeis “would close the doors before they went union.” A.R. Vol. II at 169. Benefield subsequently was hired and began work in March 2002.
In April 2002, Phil Overmyer, an organizer for the Union, told Cook to begin a campaign at the South Bend facility. Cook first spoke to Brandeis employee Ken Lubinski, who, after considering the matter overnight, informed Cook that he was not interested in joining a union. Lubinski did not inform anyone at Brandeis about his conversation with Cook.
Cook next approached fellow mechanic Mike Karre. Over lunch on May 1, 2002, Cook informed Karre about union wages and benefits. Karre asked to meet with the Union’s organizer, and, the following day, Karre met with Cook, Benefield and organizers Overmyer and Delbert Watson at a local restaurant.
On May 3, Karre went to lunch with Freeman and Muraski and informed them that Cook and Benefield had inquired about his (Karre’s) interest in joining the Union. Freeman was caught off guard by the news. After returning to the office, Freeman called Benefield into his office to inform him that he and Karre would not be attending a scheduled training session in Atlanta, Georgia, but that they would attend a class in July.
Benefield believed the Company knew that a union cam- paign was afoot and contacted Overmyer shortly after his discussion with Freeman. Overmyer faxed Freeman notice that Cook and Benefield were Union members and were launching a union campaign at Brandeis’ South Bend fa- cility. Freeman then contacted Brandeis President Gene Snowden and Vice President of Operations Larry Shuck concerning the events that were taking place. Snowden and Shuck informed Freeman that they would contact legal counsel and instructed Freeman not to make any major per- sonnel decisions without first consulting them.
On May 7, Cook and Benefield were working near Lubinski when Benefield commented that nobody was talk- ing to Cook or to Benefield except for Lubinski. Lubinski— who had been approached by Overmyer at his home about the Union and had informed Overmyer repeatedly that he was not interested in joining the Union—became upset and yelled at Benefield to stop talking to him and stop sending union organizers to his home. Another employee, Kevin Hardy, intervened and told Benefield to leave Lubinski alone or he (Hardy) might do something he would regret.
The following day, Lubinski complained to Freeman that Benefield was talking to him about the Union. Lubinski told Freeman that he wanted to avoid contact with Cook and Benefield unless such contact was related to work. In response, Freeman met with Benefield to discuss Lubinski’s complaint. During that discussion, Benefield informed Freeman that Lubinski was the person who had escalated the discussion into a shouting match and that Hardy had threatened him (Benefield); Freeman instructed Benefield to stay away from Lubinski and stated that he would look into the matter of Hardy’s threat. Later, Freeman informed Benefield that Hardy had not meant to threaten him; Hardy only meant “that he would quit his job” if the Union solicitations persisted. A.R. Vol. II at 180. Freeman then told Benefield that if he or Cook [2] needed to speak with either Lubinski or Hardy, they would have to do so through Muraski.
Snowden and Shuck arrived in South Bend and met with facility employees on the morning of May 8, 2002. During the meeting, they explained the Company’s position with respect to the Union. Although Snowden had a written speech that he worked from, he did not follow his script verbatim. Cook secretly taped the meeting, which included the following comments by Snowden:
Well they have the right to talk to you. If they want to *6 6
talk to you they can. But again you have the right not to listen. If they follow you on your property you have a right to tell them to leave the property. They don’t have any right on your property if you don’t want them on it. So, once again, if the union gets so aggressive that you feel you’re being harassed, then we need to know about it because we will do everything within our legal means to keep you from being harassed.
A.R. Vol. III, G.C. Ex.12a at 2.
While Snowden and Shuck were visiting, a customer ex- perienced transmission problems with a truck leased from Brandeis. All of the mechanics were at lunch at the time; consequently, Muraski attempted to assist the customer. Only a few minutes later, Karre returned from lunch and took over for Muraski. In light of these events, Shuck “sug- gested to [Freeman] that he consider staggering lunches so that these kinds of situations did not occur.” A.R. Vol. II at 441. Freeman took Shuck’s suggestion. On May 9, Freeman implemented a staggered and shortened lunch policy; according to the new policy, only one employee could be off for lunch at a given time, and the time allotted for lunch was shortened from one hour down to one-half hour.
Also on May 9, Freeman observed that Benefield was wearing a union button on his uniform that covered the Brandeis logo. Freeman told Benefield that he did not ap- preciate Benefield wearing the button at work and asked him to remove the button from the Brandeis logo. [4] The fol lowing week, on May 14, Muraski observed Cook wearing a union hat. Muraski, who was carrying a Brandeis hat, handed Cook the hat and told Cook that he might want to wear the Brandeis hat instead of a union hat. There were no repercussions for the employee for either incident.
Around this same time, Benefield had approached Karen Bailey, the office secretary, to gauge her interest in the Union. Bailey stated that she was not interested. Benefield then suggested that the Union could send a representative to speak to Bailey’s husband, who owned his own excava- tion business, at their home. Bailey became upset and told Benefield: “I have to put up with you here. It is not coming to my house . . . . Don’t send those people to my house, so help me God.” A.R. Vol. II at 184.
Muraski had witnessed the end of the conversation be- tween Bailey, who had begun her working day, and Benefield, who had not. Muraski approached Benefield and told him that it was his understanding that Benefield could not solicit other employees during their work time. Benefield then asked whether the rule prohibited him from discussing any subject with a fellow employee when the em- ployee was working. Muraski replied, “No, about soliciting your stuff.” A.R. Vol. III, G.C. Exs.18 & 19. When Benefield asked “what kind of stuff” Muraski was referring to, Muraski responded: “Your union.” Id.
On May 10, Lubinski, Hardy and Bailey approached Freeman and indicated that they were angry with Benefield’s and Cook’s efforts to organize and preferred to be left alone. Freeman then had a discussion with Benefield. Freeman told Benefield that if he needed to talk to these people, Benefield would have to talk with either Muraski or himself. Freeman also stated that he “was just basically looking for a cooling down period. [He] didn’t want to fight them right now.” A.R. Vol. II at 316.
Bailey had another confrontation with Cook with respect to his union activities on May 31. Cook approached Bailey and asked her how things were going. Bailey ignored Cook, and Cook repeated his question. Bailey then informed Cook that she did not want to speak with him because the employees of Brandeis were not interested in joining a union. Bailey told Cook that it was ridiculous that he and Benefield did not respect the other employees’ wishes. When Cook replied that the Union would be good for the employees and that Bailey was taking things too personally, Bailey directed a “few choice words” at Cook and left the room. A.R. Vol. II at 351. Bailey was reprimanded for using profanity and acting in an unprofessional manner. B. Administrative Proceedings
Based on these and other events, [5] the Union brought an unfair labor practice charge against Brandeis. On the basis of this charge, the NLRB’s General Counsel issued a com- plaint against Brandeis in which it alleged violations of § 8(a)(1) and (3) of the NLRA. 29 U.S.C. § 158(a)(1) & (3). After a hearing, the Administrative Law Judge (“ALJ”) con- cluded that Brandeis engaged in several violations of the Act. Specifically, the ALJ held that Brandeis had violated § 8(a)(1) of the Act by engaging in the following conduct: (1) “[q]uestioning job applicants about their union membership and affiliation”; (2) “promulgating . . . a written policy that encourages employees to report to management any employees who solicit support for a union”; (3) “[t]hreatening job applicants with plant closure if employees chose to be represented by a union”; (4) “[v]erbally encour- aging employees to report to management any employees who solicit support for a union and stating that [the Com- pany] would put a stop to such union solicitation”; (5) “[p]rohibiting employees from wearing union buttons and union hats on the job during working hours”; and (5) “[v]erbally promulgating, maintaining and enforcing a rule that prohibits employees from discussing the Union during work time, while allowing non-union and non-work discus- sions during the same time.” A.R. Vol. I, ALJ Dec. at 22. The ALJ also concluded that Brandeis had violated § 8(a)(3) of the Act by staggering lunch hours and shortening the lunch period in response to the Union’s campaign efforts. The ALJ recommended that the Company cease and desist the violations and take affirmative steps to correct the viola- tions.
Brandeis filed exceptions to the ALJ’s decision with the NLRB. However, the NLRB adopted the decision of the ALJ and ordered the relief recommended by the ALJ. [6] Brandeis then petitioned this court for review of the NLRB’s decision; [7] the NLRB filed a cross-application for enforce- ment of the order, and the Union intervened in support of the NLRB’s application.
II
DISCUSSION
This court will enforce the NLRB’s order “if its factual
findings are supported by substantial evidence and its
conclusions have a reasonable basis in law.”
Bloomington-
Normal Seating Co. v. NLRB
,
A. Handbook Language
Brandeis first maintains that the NLRB incorrectly con- cluded that its handbook section, which protects its em- ployees from harassment by union organizers, violated § 8(a)(1) of the NLRA. The NLRB concluded that Brandeis’ “policy statement invites the employees to report ‘harass- ment’ by union organizers attempting to get employees to sign authorization cards” and that “[i]t reasonably could be construed to mean that the conduct would be punished.” A.R. Vol. I, NLRB Dec. at 4. According to Brandeis, how- ever, the policy forwards the Company’s legitimate goal of maintaining discipline in its facilities. Furthermore, Brandeis asserts, the provision is not so vague as to invite complaints of activities protected by the Act.
Section 8(a)(1) provides that “[i]t shall be an unfair labor
practice for any employer . . . to interfere with, restrain, or
coerce employees in the exercise of the right[]” to organize
collectively under the Act. 29 U.S.C. § 158(a)(1). In order
to establish a violation of this provision, “[n]o proof of coer-
cive intent or effect is necessary . . . the test being whether
the employer engaged in conduct, which, it may reasonably
be said, tends to interfere with the free exercise of employee
rights under the Act.”
NLRB v. Gen. Thermodynamics, Inc.
,
12
One of the rights secured to employees under the Act is
the right to solicit on behalf of a union organizing campaign.
See
,
e.g.
,
Clinton Elecs. Corp.
, 284 F.3d at 739. Indeed, pro-
ponents of unions may “engage in persistent union solici-
tation even when it annoys or disturbs the employees who
are being solicited.”
Ryder Truck Rental, Inc.
, 341 N.L.R.B.
109, 2004 WL 963370, at *1 (N.L.R.B. April 30, 2004),
order
enforced
,
Ryder Truck Rental v. NLRB
,
This court, however, has rejected the type of “per se” approach adopted by the Board. “[O]ur cases demonstrate that a fact-based, contextual inquiry is required to deter- mine whether a company has violated the NLRA.” Bloomington-Normal , 357 F.3d at 696. Factors to consider include: “the timing of the speech, the words used in the speech, whether the speech targeted union supporters, and whether the speech was directed toward employees who were being threatened.” Id.
After considering the factors set forth above, we con-
clude that the NLRB’s determination—that the Brandeis
handbook language violates § 8(a)(1)—is supported by
substantial evidence. First, the context of the Company’s
policy is important. The policy is located in a section of
the handbook entitled “Employee Relations Philosophy,”
which details Brandeis’ desire to remain union-free; it is not
part of a more general anti-harassment policy. Second, the
focus of the prohibition against “harassment” is union
activity; there is no acknowledgment that opponents of a
union may harass, interfere or coerce fellow employees into
rejecting union representation. Thus, the language employed
by Brandeis in its handbook stands in stark contrast to that
approved by the Board in
S.E. Nichols, Inc.
,
Furthermore, Brandeis’ policy was not promulgated in response to threats or incidents of violence. When employ- ers use terms such as “harassment” after employees have been threatened or encountered violence at the hands of union proponents, employees are less likely to perceive the term as referring to protected activity. Brandeis’ policy, however, was part of its handbook, which was disseminated to employees when they were hired. Thus, Brandeis em- ployees were not able to discern any limiting principles from the circumstances under which the policy was issued.
It is incumbent upon employers to use language that
“is not reasonably subject to an interpretation that would
unlawfully affect the exercise of Section 7 rights.”
S.E.
Nichols, Inc.
,
B. Snowden’s Speech
Brandeis also urges us to revisit the NLRB’s determination that Snowden’s speech to the South Bend workforce on May 8, 2002, violated § 8(a)(1). During his speech, Snowden remarked:
Well they have the right to talk to you. If they want to talk to you they can. But again you have the right not to listen. If they follow you on your property you have a right to tell them to leave the property. They don’t have any right on your property if you don’t want them on it. So, once again, if the union gets so aggressive that you feel you’re being harassed, then we need to know about it because we will do everything within our legal means to keep you from being harassed.
A.R. Vol. III, G.C. Ex.12.
As noted above, although statements by management
encouraging employees to report “harassment” in connec-
tion with a union solicitation is not per se violative of the
Act, the context in which the statement is made must not be
“so vague as to invite employees generally to inform on
fellow workers who were engaged in union activity,”
Liberty
Nursing Homes, Inc.
,
Brandeis similarly contests the NLRB’s determination that the actions of Freeman and Muraski in commenting upon the union hat and buttons worn by Cook and Benefield violated § 8(a)(1) of the Act. The NLRB maintains that, in the absence of extenuating circumstances, i.e., a safety reason why union items cannot be worn or displayed, com- mentary of this sort by management violates § 8(a)(1).
This court has recognized that the Act guarantees em-
ployees the right “to wear union buttons or insignia as part
of concerted activity to assist the union.”
NLRB v. Shelby
Mem’l Hosp.
, 1 F.3d 550, 565 (7th Cir. 1993). This right,
however, is not absolute and may be “abridged when the
employer demonstrates that special circumstances exist
which justifies [sic] the banning of union insignia.”
Eastern
Omni Constructors, Inc. v. NLRB
,
Brandeis does not attempt to justify the comments made in the present case on the grounds of safety, discipline or production. Instead, Brandeis maintains that the actions of Freeman and Muraski did not dissuade Cook or Benefield from touting the Union on their clothing, consequently, no violation of the Act occurred.
As noted above, however, the test for a violation of
§ 8(a)(1) is not whether the employer actually interfered
with its employees’ rights under the NLRA, but whether the
employer’s actions had a
tendency to interfere
with those
17
rights.
Gen. Thermodynamics, Inc.
,
Given that a showing of actual interference is not neces- sary to establish a § 8(a)(1) violation, we again conclude that the NLRB’s determination is supported by substantial evidence.
D. Prohibition of Discussion of Union Brandeis also asks us to review the Board’s determination that Muraski’s oral prohibition of union discussions during work time violated § 8(a)(1). Brandeis argues that it was entitled to impose a rule that prohibits union solicitations in order to maintain productivity and discipline. The NLRB urges that the broad prohibition against union discussions cannot be justified on these grounds.
Brandeis does not dispute the general proposition that an employer violates § 8(a)(1) of the NLRA when it discrim- inatorily prohibits employees from discussing union-related topics during work time while tolerating other subjects of discussion. See , e.g. , Atlas Metal Parts Co., Inc. v. NLRB , 660 F.2d 304, 311 (7th Cir. 1981). Brandeis, however, maintains that, in the absence of some evidence that anti-union animus motivated Muraski in prohibiting the discussions, the rule should have been sustained. Brandeis relies upon Adtranz ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB , 253 F.3d 19 (D.C. Cir. 2001), in support of its position.
Brandeis’ reliance on Adtranz is misplaced. In Adtranz , the company had a rule in its employee handbook against “soliciting and distribution without authorization.” Id. at 28. The District of Columbia Circuit first noted that the rule in question only applied “to conduct during working time and in the work place.” Id. The court continued: “ ‘Working time is for work’ is a long accepted maxim of labor relations. Therefore rules prohibiting solicitation during working time are presumptively lawful because such rules imply that solicitation is permitted during nonworking time, a term that refers to the employees’ own time.” Id. (internal quotation marks and citations omitted). Furthermore, the court observed that Adtranz’s rule was an “across the board” policy, and “there [wa]s no suggestion that anti- union animus motivated the policy” or that the rule “dis- criminate[d] against unionization efforts or other protected activity.” Id. at 29. Thus, among the court’s reasons for sus- taining Adtranz’s “no solicitation” rule were that the rule was not intended to, nor was it enforced in such a manner as to, discriminate against speech or actions protected by the Act.
The same cannot be said regarding Muraski’s instruction to Benefield that he and Cook refrain from discussing “union stuff.” There is evidence that the statement was mo- tivated by Benefield’s and Cook’s prior solicitation efforts, and there is no question that it targeted only future solici- tations on behalf of the Union, as opposed to all speech during work time.
Brandeis is free to adopt nondiscriminatory policies that forward its legitimate objectives of maintaining plant prod- uctivity and discipline. However, those policies may not target, either through design or enforcement, activity pro- tected by the Act. Because the oral rule promulgated by Muraski was directed only at discussions concerning the Union, the NLRB’s conclusion that the prohibition violated the NLRA is supported by substantial evidence. E. Alteration of Lunch Policy
Finally, Brandeis claims that its alteration of the lunch policy was not a response to the Union’s organizing activ- ities that took place during the lunch hour. It was, instead, a legitimate response to the detrimental effect that an uni- form lunch hour had on its ability to serve its customers’ needs. The General Counsel urges that both the breadth of the policy, as well as the timing of its implementation, support the NLRB’s conclusion that the change in policy *20 20
was in response to legitimate, protected activity.
Section 8(a)(3) of the NLRA prohibits an employer from discriminating “in regard to hire or tenure of employment or any term or condition of employment to . . . discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). In order to establish a violation of § 8(a)(3), the “General Counsel must establish that antiunion animus was a motivating factor in the decision. If the General Counsel succeeds, the employer—to escape a finding of an unfair labor practice—must establish its affirmative defense— that it would have taken the action regardless for nondiscrimina- tory reasons.” NLRB v. Joy Recovery Tech. Corp. , 134 F.3d 1307, 1314 (7th Cir. 1998) (citing Schaeff Inc. v. NLRB , 113 F.3d 264, 267 n. 5 (D.C. Cir. 1997)).
In this case, the NLRB found that anti-union animus was a motivating factor behind the decision to change the lunch policy. The record establishes that the Union was using the lunch hour as a time to meet with potential members and convince them of the merits of unionization. Furthermore, the record shows that the Company became aware that active union recruitment was taking place during the lunch hour. The change in policy followed closely on the heels of Cook’s and Benefield’s lunch meetings with Karre and, according to the Board, made it “difficult for employees to take their lunches at the same time, and thereby inhibit[ed] the Union’s organizing efforts.” A.R. Vol. I, NLRB Dec. at 9. Thus, the record supports the NLRB’s conclusion that union activity was a motivating factor in the change of policy.
Brandeis does not argue that the General Counsel failed to meet its initial burden of establishing that the union campaign was a motivating factor in the decision to alter the lunch policy. See Reply Br. at 15. Brandeis maintains, however, that it established that its actions were non-pre- textual. It contends that, even in the absence of the Union’s organizing campaign, the change would have been imple- mented because the uniform lunch hour deprived Brandeis of the necessary personnel to service customers, as evi- denced by the events of May 8, 2002.
The NLRB counters that, if customer service was the driv- ing force behind the change in policy, the policy should have been restricted to mechanics. However, “the changes restricted everyone from taking lunch with anyone else and therefore stymied any attempts to organize during lunch time, which is when Cook and Benefield previously had spoken to employees one-on-one about joining the Union.” A.R. Vol. I, NLRB Dec. at 10. Furthermore, the General Counsel argues that “[q]uickly attending to repairs was not an ongoing problem at the facility and similar situations were not likely to occur.” Respondent’s Br. at 38.
Brandeis need not wait, however, until it has experienced
persistent lapses in customer service before it adopts a pol-
icy that allows it to serve its customers in a more efficient
and timely manner. Furthermore, we have no doubt that, at
some level, Brandeis’ lunch policy forwards that goal.
Brandeis’ burden, however, was not simply to establish that
there was another, legitimate reason that motivated its
action; Brandeis had to show that it would have taken the
same action in the absence of the illicit motive.
See
,
e.g.
,
NLRB v. Transp. Mgmt. Corp.
, 462 U.S. 393, 400-03 (1983)
(upholding NLRB’s construction of the Act that, after a
showing that the employer’s adverse action was motivated
by anti-union animus, the burden was on the employer to
show that it would have reached the same decision “had the
forbidden motive not been present”),
abrogated on other
grounds, Dir., Office of Workers’ Comp. Programs, Dep’t of Labor
v. Greenwich Collieries
,
Conclusion
For the foregoing reasons, we deny Brandeis’ petition for review, and we grant the cross-application for enforcement of the NLRB’s order.
P ETITION D ENIED ; A PPLICATION FOR E NFORCEMENT G RANTED A true Copy:
Teste:
________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—6-24-05
Notes
[1] Cook apparently had learned of the position through Union organizer David Fagan.
[2] Cook was present during these discussions as Benefield’s Union representative.
[3] This arrangement apparently is the policy at the other Brandeis facilities.
[4] Prior to this event, Freeman had made a comment to Cook (continued...)
[4] (...continued) about wearing a union hat.
[5] The initial unfair labor charge brought against Brandeis in- cluded allegations that Brandeis had treated Benefield unfairly and, eventually, had terminated his employment as a result of his union affiliation. The Administrative Law Judge dismissed these allegations, and those allegations are not before this court. Consequently, those charges, and their factual bases, are not dis- cussed in this opinion.
[6] The NLRB adopted the ALJ’s decision with only minor modi- fications. For instance, the NLRB affirmed the ALJ’s determ- ination that the incident involving the union hat constituted a violation of the NLRA. However, the NLRB explained that, “[b]e- cause it would be cumulative of this violation to consider and (continued...)
[6] (...continued) affirm the judge’s finding that the Respondent additionally vio- lated Sec. 8(a)(1) by prohibiting Benefield from wearing union insignia (a button) on his hat, and it would not affect the remedy, we find it unnecessary to pass on this latter allegation.” A.R. Vol. I, NLRB Dec. at 1 n.7. One member of the Board dissented from the Board’s affirm- ance of the same issue. That member did not believe that the request to substitute the Brandeis hat for a union hat constituted a violation of the Act and believed it equally insupportable that the button incident constituted a violation.
[7] Brandeis’ petition for review does not contest the Board’s con- clusion that the inquiries and statements concerning union in- volvement that occurred during the interviews conducted by Freeman and Muraski violated the Act.
[8] The Board has contrasted employer pronouncements against
“harassment”—which violate the Act—with employer pronounce-
ments against “threats”—which do not violate the Act.
See Liberty
Nursing Homes, Inc.
,
[9] Indeed, although there is no evidence in the record that Cook and Benefield were engaging in something other than protected activity under the Act, their actions engendered a number of complaints to management.
[10] If there had been only one stray comment by a member of
management with respect to the display of union items, we may
have reached the same conclusion as did the Fourth Circuit in
Eastern Omni Constructors, Inc. v. NLRB
,
[11] Specifically, the NLRB adopted the ALJ’s determination with respect to this issue; the ALJ stated: A careful analysis of [the] situation, however, discloses that the changes imposed by the Respondent were not necessary to resolve the problem. According to Shuck, there was some- one available to render assistance to the customer, i.e., Muraski. Only 5 minutes passed before he was relieved by Karre, who quickly fixed the problem. Nor does the evidence disclose that this was an on-going or repeated problem or that similar situations were likely to occur in the future given the nature of the Respondent’s business. For example, the field service mechanic for the most part is out of the building and most likely would not be available to render assistance, regardless of whether lunches were staggered and shortened. There are two in-house service mechanics, who normally do not perform field service work, but who conceivably could provide the type of coverage that Shuck envisioned if they, and they alone, staggered their lunch hours. But the changes imposed by Freeman went far beyond what was necessary to remedy Shrock’s [sic] concern because the changes affected all employees, like Ken Lubinski and Kevin Hardy, who were not mechanics, and Benefield who was a field service mechanic. Indeed, the changes restricted everyone from taking lunch with anyone else and therefore stymied any attempts to organize during lunch time, which is when Cook and Benefield previously had spoken to employees one-on-one about joining the Union. Thus, I find that the Respondent has failed to persuasively show that in the absence of a union organizing drive, the changes that it imposed on lunch times would have been the same. A.R. Vol. I, NLRB Dec. at 10.