Mallory Battery Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mallory Battery Company, a division of P. R. Mallo- ry & Co., Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 11- CA-7064 November 2, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MURPHY. AND TRUESDALE Upon charges' duly filed by Chauffeurs, Team- sters and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, the Regional Director for Region 11 of the National La- bor Relations Board, acting on behalf of the General Counsel of the Board, issued a complaint, as amended, alleging that Respondent Mallory Battery Company, a division of P. R. Mallory & Co., Inc., violated Section 8(a)(1) of the National Labor Rela- tions Act, as amended (29 U.S.C. § 151, et seq.). Re- spondent filed an answer to the complaint, as amended, in which it admitted certain allegations of the complaint and denied others, including all those charging it with the commission of any unfair labor practices. On June 30, 1978, the General Counsel, the Charg- ing Party, and Respondent entered into a stipulation in which they agreed to certain facts relevant to this proceeding. They also agreed to waive a hearing be- fore an Administrative Law Judge, the issuance of an Administrative Law Judge's Decision, and the pre- sentation of any evidence other than that contained in the stipulation and exhibits attached thereto. By order dated August 4, 1978, the Board approved the stipulation and transferred the proceeding to the Board. Thereafter, the General Counsel and Respon- dent filed briefs with the Board. 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. The Board has considered the entire record in this case, including the parties' briefs, and makes the fol- lowing: i The original charge was filed on June 14, 1977. An amended charge was filed on August 5, 1977. FINDINGS OF FACT I THE BUSINESS OF TIlE EMPLOYER Mallory Battery Company, a division of P. R. Mallory & Co., Inc., has been at all times material a corporation duly organized under the laws of the State of Delaware, with facilities located in the State of North Carolina, including a plant at Lexington, North Carolina, where it is engaged in the manufac- ture of batteries. During the past year, Respondent received at its Lexington. North Carolina, plant goods and raw materials directly from points outside the State of North Carolina valued in excess of $50,000 and, during the same period of time, shipped directly to points outside the State of North Carolina products valued in excess of $50,000. Accordingly, in agreement with the stipulation of the parties, we find that Respondent is now and has been at all times material an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. It will therefore effec- tuate the policies of the Act to assert jurisdiction in this proceeding. ii. THE LABOR ORGANIZATION Chauffeurs, Teamsters, and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Since 1969 Respondent has distributed to its em- ployees at the Lexington, North Carolina, plant a 17- page document entitled "Your Future at Mallory." The document contains the following paragraph enti- tled "Plant Rule No. 7": 7. OUTSIDE BLSINEss--Solicitations, collection of funds, selling among employees, pledges, sub- scriptions, circulation of petitions, distribution of literature, solicitation of memberships, or similar activities are not allowed during working time; nor are such activities on behalf of busi- ness, charitable, social or fraternal organiza- tions, or for the employee's private profit al- lowed on Company property. Special permission may be granted in certain instances of recog- nized charities. Respondent has distributed this document to approx- imately 656 employees at the Lexington plant since February 7, 1977, and continues to distribute the document to its employees. 204 MALLORY BATTERY COMPANY The General Counsel contends that Plant Rule No. 7 in Respondent's document is an invalid rule prohibiting union activity on company property dur- ing nonworking time and that Respondent's mainte- nance of the rule constitutes a violation of Section 8(a)(1) of the Act. In support of this contention, the General Counsel points to the second clause of the rule, which prohibits solicitation and distribution on company property "on behalf of business, charitable, social or fraternal organizations, or for the employ- ee's private profit," and argues that its terms are suf- ficiently broad that it may reasonably be foreseen that employees would not know whether union activ- ity is prohibited on the premises of the plant during the employees' nonworking time. Respondent contends that none of the terms in the second clause of Plant Rule No. 7 encompass, or may be construed to encompass, labor organizations and that the rule is therefore valid. A fortiori, Re- spondent contends that the maintenance of the rule does not constitute a violation of Section 8(a)(1) of the Act. It has long been held that the organizational rights of employees require that they be permitted to solicit on their employer's premises on nonworking time and to distribute materials on nonworking time in nonworking areas of the plant.2 The second clause of the rule at issue herein bans all solicitation and distri- bution on behalf of certain organizations on the plant premises. If the clause encompasses labor orga- nizations, then clearly it violates the above-stated principle and is unlawfully broad. There is no specif- ic mention of labor organizations in the clause: thus, the central question to be resolved is whether the rule may reasonably be construed by employees to pro- hibit solicitation or distribution on behalf of labor organizations. We find, for the reasons stated below, that it may be so construed. Fraternal organizations are among the organiza- tions listed in the second clause of Respondent's Plant Rule No. 7. A fraternity, or fraternal order, is defined as "a group of people associated or formally organized for a common purpose, interest, or plea- sure: as . . . a usu. organized group of men of the same class, occupation, interest, or pursuit: company, guild. fraternal order." 3 A labor organization, as de- fined by the Act,4 comes within the scope of the defi- 2 Sloddard-Quirk Manufacturing (C. 138 NL RB 615 (1962) 14ebsrer' Third NVew International Dlutionorl, 'nahridged (i. & ( Mer- riam Co.. (1971) 4 Sec 2(5) reads as follows: The term "labor organization" means any organization of any kind. or an) agency or employee representation committee or plan. in which employees participate and which exists for the purpose. in whole or In part, of dealing with emplosers concerning grievances. labor disputes. nition of fraternity in that it is a group of people (employees of the same occupation) organized for a common purpose (dealing with employers concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work). Fur- ther, it is common knowledge among those who regu- larly deal with labor relations matters that many, if not all, labor organizations consider themselves to be fraternal organizations. This is evidenced by the use of the term "brotherhood" in the title of many unions, including that of the Union involved herein, and by the common practice among unions of refer- ring to fellow members as "brother" or "sister." Members of such organizations would reasonably as- sume that they are covered by the term "fraternal organization" and therefore subject to the prohibi- tions in Respondent's rule. Thus, through the use of the term "fraternal orga- nization," the second clause of Respondent's Plant Rule No. 7 encompasses labor organizations.5 That the term may have other meanings, such as a social club, is of no significance. It is a well-established principle that ambiguity in a rule is construed against the maker of the rule.6 Here, the ambiguity must be construed against Respondent's contention that the rule does not prohibit employees from engaging in union organizational activities on Respondent's premises. Accordingly, we find that the second clause of Re- spondent's Plant Rule No. 7 prohibits employees from soliciting or distributing literature on behalf of labor organizations and thereby inhibits employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act.7 Respondent's maintenance of the rule, therefore, is a violation of Section 8(a)(l) of the Act.8 IV. THE EFFE(f7 OF THE UNFAIR PRACTICES UPON COMMERCE T he activities of Respondent as set forth above oc- curring in connection with its operations have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and wages. rates of pay. hours of employment. or conditions of work. In lighl of this concluslon. we find it unnecessary to reach the General Counsel's conlention that the terms "business and social organizations" also encompass labor organizations. oflrlh .aonufacturing ('omp/an,. 187 NLRB 601 (1970) Member Murphs bheliees that the emplosees' rights to engage in the union actisit of soliciting on the emploser's premises during nonworking time and distributing literature during nonworking time in n-onworking ar- eas of the employer's premises is also protected by the first amendment to the ('onst!tution See Unrted Parcel Seriice, Inc. 230 NLRB 1147, fn. 4 (1977). 8 Member Jenkins would additionally find the rule Invalid because it pro- hibits solicitations during "working time" See the dissenting opinion in Ess,' Inlernionol/. Inc, 211 NI RB 749 (1974). 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. REMEDY Having found that Respondent has engaged in vio- lations of Section 8(a)(l), we shall order that it cease and desist therefrom and take certain affirmative ac- tion in order to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Mallory Battery Company, a division of P. R. Mal- lory & Co., Inc., Lexington, North Carolina, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining any rule or regulation prohibiting its employees from soliciting on behalf of any labor organization on Respondent's premises during non- working time or prohibiting the distribution of union literature in nonworking areas during employees' nonworking time. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Rescind its Plant Rule No. 7 insofar as it pro- hibits employees from soliciting on behalf of labor organizations or distributing union literature on Re- spondent's premises. (b) Post at its plant in Lexington, North Carolina. copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Re- gional Director for Region 11, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region I 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 9 In the event that this Order is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain any rule or regulation prohibiting our employees from soliciting on be- half of any labor organization on our premises during nonworking time or prohibiting the dis- tribution of union literature in nonworking areas during employees' nonworking time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL rescind our Plant Rule No. 7 insofar as it prohibits employees from soliciting on be- half of labor organizations or distributing union literature on our premises. MALLORY BATTERY COMPANY, A DIVISION OF P. R. MAl.ORY & Co.. INC. 206