Baldor Electric Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baldor Electric Company and General Drivers and Helpers Local Union No. 373, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 26-RC-5972 September 28, 1979 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS PENELLO, MURPHY, ANI) TRUESDAI.E Pursuant to a Stipulation for Certification Upon Consent Election, a secret-ballot election was con- ducted in the stipulated unit described below. The tally of ballots furnished the parties showed that, of approximately 1,138 eligible voters, 1,083 cast valid ballots, of which 511 were for the Petitioner and 572 were against. There were 15 challenged ballots, and the challenges were not sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National La- bor Relations Board Rules and Regulations, the Re- gional Director conducted an investigation and, on July 6, 1979,' issued and served on the parties his Report on Objections, recommending that one of the Petitioner's objections be sustained and the election held on May 18 be set aside, and that a direction of second election issue. Thereafter, the Employer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the fol- lowing employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, warehouse and foundry employees employed by All dates, unless otherwise noted, are in 1979. the Employer at its Zero and Wheeler Avenue Plant in Fort Smith, Arkansas, excluding all of- fice clerical employees, professional and techni- cal employees, watchmen, guards and supervi- sors as defined in the Act. 5. The Petitioner raised 17 objections to the elec- tion. It withdrew 10 of' them, and we adopt the Re- gional Director's recommendation that their with- drawal be approved. Seven of the objections, including Objection I at issue here, described inci- dents which have been alleged as 8(a)(1) violations and included by amendment in the complaint and notice of hearing in Case 26-CA--7796.2 Accordingly, the Regional Director's report dealt with only one aspect of Objection 1, which alleged that the Em- ployer had maintained an invalid no-solicitation/no- distribution rule during the critical preelection period. The Regional Director's investigation revealed that the Employer's handbook "You and Baldor" con- tained, as alleged, invalid no-solicitation/no-distribu- tion rules. Thus, Rule 6 under "General Plant Rules"3 reads as follows: 6. Soliciting of or by employees for the sale of any item or the collection of funds is not permit- ted without the authorization of the plant man- ager. No literature or printed matter may be posted or circulated without authorization. The same handbook, under "For Your Informa- tion," contained two other rules, infractions of which were not subject to the Employer's disciplinary proce- dure: NO DISTRIBUTION Because a clean plant is necessary for proper op- eration and in the interst of good housekeeping, there will be no distribution of any type of litera- ture or written material in working areas of the plant, except for such material distributed by management necessary for management func- tions. NO SOLICITATIONS There will be no solicitations for membership or funds for any organization in the working areas of the plant without plant manager approval. The "General Plant Rules," as well as the rules enti- tled "For Your Information," were promulgated and distributed to employees about 1-1/2 years ago, and 2 The original complaint issued on June 8. pursuant to a charge which was filed on Ma 3. 3 Employees were subject to discipline for violating the "General Plant Rules." and could be discharged for repeat violations. 245 NLRB No. 56 614 BALDOR ELECTRIC COMPANY each employee is provided a copy of the handbook. Every new employee also receives a copy of the hand- book. In addition, the Regional Director found that the Employer's plant manager admitted in an affida- vit that the Employer had enforced the invalid rules against employees on at least one occasion early in March. Except for this one incident, however, the Employer contended that employees were permitted to solicit on nonworking time and to distribute in nonwork areas. The Regional Director concluded, and we agree with him, that the Employer's no-solicitation and no- distribution rules are invalid. Rule 6 prohibits all so- licitation and distribution unless approved by man- agement, while the "For Your Information" rules un- lawfully restrict solicitation during nonworking time.4 Finally, the Regional Director found, and we agree, that the existence of the invalid rules, coupled with the Employer's enforcement of the rule only a few weeks before the election, created a coercive atmo- sphere which interfered with the employees' free choice in the election. The Employer, however, argues that throughout the critical period employees freely distributed litera- ture and solicited support for the Petitioner and that, therefore, the invalid rules had no effect on the elec- tion. The Employer states that after it stopped solici- tation for the Union in March, it spoke to its attor- ney, who informed the Employer of the law regarding distribution and solicitation. The Employer asserts that such activity was permitted thereafter. This de- fense is contained in affidavits, and the Employer re- quests a hearing to prove these facts. The Regional Director rejected this defense on the grounds that, under Board law, the Employer must show that it informed the employees generally that it no longer had an invalid no-solicitation/no-distribu- tion rule, and that henceforth it would only enforce a valid rule. The Regional Director found that, accept- ing the truth of the affidavits, the Employer had not shown a comprehensive repudiation of the invalid rules. Therefore, he found, no hearing was required, and the objection should be sustained. We agree with the Regional Director. Where, as here, the Employer 'Thus, even if., as the Employer contends, Rule 6 was not intended to apply to solicitation and distnbution for union purposes, the second "No solicitation" rule-which clearly applies to such activities-is invalid. has invalid no-solicitation/no-distribution rules which have been published and distributed to all em- ployees and thereafter enforced by the Employer against some employees, it is necessary, in order to assure a free election, that the Employer generally repudiate the rule to all employees. Here, the employ- ees were never informed in a comprehensive fashion of their right to distribute literature in nonwork areas, or to solicit support for the Petitioner on nonworking time. As the Regional Director concluded: [Elmployees were never informed, by means which would have had a comprehensive effect, that the no-solicitation/no-distribution rules had been modified or rescinded .... [Therefore,] em- ployees, in order to exercise their legitimate rights during the critical period, would have had to do so in contravention of rules which had re- cently been enforced and might again be en- forced at any time the Employer chose. Putting employees in such jeopardy deters them from ex- ercising their legitimate rights to solicit and dis- tribute literature on behalf of the Union. A second election is therefore required.5 Accordingly, the Board has considered the Peti- tioner's objection, the Regional Director's report, and the Employer's exceptions, and, for the reasons stated above, adopts the Regional Director's findings, con- clusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts the recommendation of the Re- gional Director that the election held on May 18, 1979, be set aside and hereby orders that the election conducted on May 18, 1979, be, and it hereby is, set aside and that Case 26-RC-5972 be, and it hereby is, remanded to the Regional Director for Region 26 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] Ragu Foods, Inc.. 217 NLRB 1109 (1975); and see The Dezurik Division General Signal Corporation, 234 NLRB 914 (1978). 615