Extract
Litton Systems, 324 (1990)
Litton Microwave Cooking Products, Division of
Litton Systems, Inc. and United Electrical, Radio and Machine Workers of America (UE). Cases 18-CA-7065, 18-CA-7325, 18-CA-7402, and 18-CA-7573September 28, 1990DECISION AND ORDERBY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATTOn March 12, 1984, Administrative Law Judge David L. Evans issued the attached decision. The Respondent and the General Counsel each filed exceptions and a supporting brief; the Charging Party filed cross-exceptions and a supporting brief. The Respondent filed an answering brief to the Charging Party's cross-exceptions and the General Counsel's exceptions; the General Counsel and the Charging Party each filed an answering brief to the Respondent's exceptions.The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions2only to the extent consistent with this Decision and Order.The Respondent manufactures microwave countertop ovens at its Sioux Falls, South Dakota plant. Its production and maintenance employees had been represented by the Union since September 19, 1980,3when it was certified pursuant to a Board election conducted September 11, 1980. As of the date of the hearing in this proceeding, the Union and the Respondent had yet to negotiate a contract concerning the Sioux Falls employees. The instant complaint alleges that the Respondent violated Section 8(a)(5) and (1) during its initial contract negotiations with the Charging Party commencing October 7, 1980. The complaint also alleges violations of Section 8(a)(3) and independent violations of Section 8(a)(1) during the 17-month period of negotiations.The judge found numerous violations of Section 8(a)(5), (3), and (1) of the Act and dismissed other allegations. For reasons discussed below, we are not in full agreement with all these findings. Most significantly, we disagree with the judge's finding that the Respondent during the 53 session, 17-month-long course of negotiations engaged in surface bargaining in violation of Section 8(a)(5) and (1).I. THE 8(A)(1) ALLEGATIONSThe judge found that the Respondent violated Section 8(a)(1) by the actions described below. We agree with these findings for the following reasons. 1. The judge found that the Respondent violated Section 8(a)(l) when Supervisor Jackie Moeller, 2 weeks before the election, told employee Mark Hubert, ''I hear you have been talking to people on company time and I respect your right to talk to people about the Union but don't do it on company time.''The judge reasoned that the proscription about talking on ''company time'' was overly broad because the employees received two paid breaks per day. He further found that Moeller's statement constituted a discriminatory no-solicitation rule because undisputed testimony showed that employees were otherwise permitted to talk about anything during working time.We agree that the statement was a discriminatory rule and on that basis adopt the judge's finding that Section 8(a)(1) was violated. We further agree that Moeller's proscription was overly broad. See Hoyt Water Heating Co., 282 NLRB 1348, 1357 (1987), and cases cited therein, holding that ''company time'' could reasonably be construed as encompassing both working and nonworking time spent on the company premises. 2. The judge found that Supervisor Roger Kozel unlawfully interrogated employee Silvia Dunkelberger in August 1980. He found that at the end of a performance review discussion in Kozel's office, Kozel told Dunkelberger that he would like to talk about the Union, that he wanted Dunkelberger to give her views, and that Kozel would then give his. Dunkelberger indicated she would rather not, but after Kozel repeated his request three times, she relented and related several employee complaints about terms and conditions of employment. Kozel then told them about several negative experiences he had had with unions. Dunkelberger was an active union supporter who eventually was the first president of the local involved here, Local 1180.Subsequent to the judge's decision, the Board issued its decision in Rossmore House,4 in which it re-affirmed the ''totality of the circumstances'' test to determine whether interrogations of employees are unlawful. Applying that test, we agree with the judge that Kozel's interrogation of Dunkelberger violated Section 8(a)(1) of the Act. Thus, the interrogation was conducted in Kozel's office at the end of a performance review discussion and Kozel persistently urged Dunkelberger to express her views about the Union in1 The General C...See the full content of this document
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