Pacific Industries, Inc.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restraining, and coercing its employees in the exercise of their rights under Section 7 in violation of Section 8 (a) (1) of the Act. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of -the Act, I shall recommend .that it cease and desist therefrom and from like or related interference with the rights of its employees to organize and bargain collectively. I shall also recommend appropriate affirmative relief adopted to the situation which calls for redress. Upon the foregoing findings, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Chas. S. Wood & Co. is an employer engaged in commerce within the meaning of the Act. 2. Local 408 is a labor organization within the meaning of the Act. 3. All truckdrivers and warehousemen employed at Respondent's West Orange premises, exclusive of all other employees and all supervisors , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. At all times relevant herein Local 408 has been the exclusive bargaining repre- sentative of all the employees in the above-described unit within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain collectively in good faith with Local 408 as the exclusive bargaining representative of the employees in the appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Midland Manufacturing Company, Division of Pacific Indus- tries, Inc. and International Union of Electrical , Radio, and Machine Workers, AFL-CIO. Case No. 17-CA-1778. Novem- ber 3, 1961 DECISION AND ORDER On August 24, 1961, Trial Examiner George J. Bott issued his In- termediate Report in the above=entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions,' the brief, and the entire record in this case, 1 The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and brief, adequately, reflect the issues and the positions of the parties. 134 NLRB No. 6. MIDLAND MFG. CO., DIV. OF PACIFIC INDUSTRIES, INC. 11 and adopts the findings,2 conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Midland Manu- facturing Company, Division of Pacific Industries, Inc., Kansas City, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Promulgating or enforcing any rule prohibiting employees from soliciting 'membership in International Union of Electrical, Radio, and Machine Workers, AFL-CIO, or any other union, or dis- cussing self-organization among themselves on company property during nonworking time, including lunch periods and coffee breaks. (b) Threatening employees that Respondent will close its plant if it is organized by a union. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above- named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant at Kansas City, Kansas, copies of the notice hereto attached marked "Appendix." I' Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by Respondent, be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive 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. (b) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2 In his treatment of the testimony Involving the "button passing" incident, the Trial Examiner found that Supervisor Hammer did not deny Bullock 's testimony that "he thought Hammer was not interested in the Union ." As supported by the record, we hereby substitute "Bullock" for "Hammer" in the foregoing quoted clause , noting that this correction in no way affects the Trial Examiner's ultimate findings or ' our con- currence therein. 8 In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United -States Court of Appeals, Enforcing an Order." 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations, Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT promulgate or enforce any rule prohibiting em- ployees from soliciting membership in International Union of' Electrical, Radio, and Machine Workers, AFL-CIO, or,any other union, or discussing self-organization among themselves on com- pany 'property during nonworking time, including lunch periods and coffee breaks. WE WILL NOT threaten employees that we will close our plant if it is organized by a union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to, self-organization, to form labor organizations, to join the Inter-- national Union of Electrical, Radio, and Machine Workers, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such. activities. MIDLAND MANUFACTURING COINIPANYI DIVISION OF PACIFIC INDUSTRIES, INC., Employer. Dated ----------------- By-------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof,- and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly designated Trial Examiner in Kansas City, Missouri, on 'June 28 , 1961 , on complaint of the General Counsel and answer of Midland Manufacturing Company, Division of- Pacific Industries, Inc., the Respondent herein . The issues litigated were whether Respondent had enforced a rule prohibiting employees from engaging in union activity on company premises and threatened employees that the plant would close down before it would permit the Union to come in. On August 14, 1961 , Counsel for Respondent and the General Counsel submitted briefs which I have duly- considered. Upon the entire record , and upon my observation of the witnesses, I make the- following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS The Respondent, a California corporation, a Division of Pacific Industries, Inc.,. maintains its principal office and place of business at Kansas City, Kansas, where it- MIDLAND MFG. CO., DIV. OF PACIFIC INDUSTRIES, INC. 13 is engaged in the manufacture of electronic equipment and allied products. In the course and conduct of its business at Kansas City, Kansas, the Respondent ships goods, articles, and commodities valued in excess of $50,000 annually to points outside the State of Kansas . Respondent concedes, and I find, that it is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio, and Machine Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. - - III. THE ALLEGED UNFAIR LABOR PRACTICES A. The rule against union activity on company property and threats to close the plant The General Counsel's case with respect to the rule and threats revolves prin- cipally around the activities of Melvin Hammer, one of Respondent's supervisors, and was developed chiefly by one witness, employee Roxie Bullock. On November 8, 1960, Respondent posted a "Notice to All Employees" reading as follows: In the past several weeks the company's production has been impaired by disruptive activities by a few employees trying to organize a union in the plant. This is seriously jeopardizing our commitments to our customers. We are now asking for a complete curtailment of this activity during working hours. Here- after any employee found engaged in such activities and neglecting her or his work or interfering with the work of other employees in organizational activities in the plant will be dismissed. -[Emphasis supplied.] ' Respondent employs 300 persons on 2 shifts and has 18 to 20 persons in super- visory or executive capacity. Employee Bullock had been employed in the plant since October 1959 in the radio department under Supervisor Hammer. Hammer had between four to six employees under his supervision and he and the other employees, including Bullock, normally ate lunch and had coffee breaks together in the plant. Bullock testified that on March 30, 1961, about 4 p.m., an employee entered the radio department on the way to the timeclock and informed the employees that she had been laid off. Supervisor Hammer was present at the time along with three other employees. A discussion took place about the laid-off employee and employee Griffin, according to Bullock, "said something about if the company wasn't careful that the union was watching them to see if there was an unfair labor practice." Hammer then made the statement, "Well, before- a union would be allowed to come into the company that Mr. McGrew [Respondent's division manager] would close the company down, and it would be shut down first." Bullock also testified that Hammer had made the same statement to him several times before. He said the statements occurred at coffee breaks and lunch with Hammer "within two or three months" prior to March 30, 1961. Employees Griffin and Lopez corroborated Bullock in all essential details about the threat of March 30 and prior statements to the same effect by Hammer. They admitted that the earlier remarks by Hammer about shutting down probably took place at lunch or coffee wherg a variety of subjects were discussed. ' Melvin Hammer testified that he did not recall making the statements asserted as made prior to March 30, 1961, but admitted that it was possible he did. With respect to the March 30 threat, he testified that he remembered the conversation "faintly" but not clearly and did not remember making the statement about shutting down before permitting the Union to come in to the plant. I find on the basis of the corroborated testimony of Bullock, which Hammer was unable to refute positively, that Hammer made the remarks attributed to him. By so threatening employees that Respondent would close its operations to prevent union organization, Respondent interfered with, restrained, and coerced employees in the exercise of their rights within the meaning of Section 8(a) (1) of the Act. With respect to the alleged announcement and enforcement of a rule prohibiting union activity on company property, employee Bullock testified as follows: On April 13, 1961, he began to wear a union button at work. That afternoon-, after the 4 p.m. quitting bell had rung, he and employee Murphy engaged in conversation about the Union while waiting to punch the timeclock. He. offered Murphy a union button which she declined. . According to Bullock, on the following day, April 14, Supervisor Hammer, under instructions from Harvey Humann, plant manager, called Bullock into a private 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and discussed Bullock's union activity. At this point the parties are in dispute, as to the content of the conversation . Bullock testified that Hammer told him that his union activities had "come to the attention of Mr. Humann" and Hammer "was, informed to advise me not to conduct any further union activities." Bullock added that Hammer told him at the time that, I was not to conduct any union activity on the premises of the company and that it was considered as a warning and would go on my records as such, and he also informed me that I was next on the list of seniority, for layoff, which I disagreed because I am actually the oldest man in the radio room next. to Mr. Hammer on the day shift. I asked him if this ruling of not conducting, union activities of having people sign cards and giving opinions applied to my coffee breaks and my lunch period and out in the parking lots, and he said, "Definitely, under no circumstances any activities on the premises of the company at any time." Hammer, according to Bullock, also told him that the Company had no control over what he did away from the Company, that he could ". . . go to the union meeting, or at home, or any place away from here, we have no control over it, but while you are in the company there will be no union activities conducted." In addition to the remarks about the location of his union activities, Hammer, so Bullock testified, explained to him why certain people had been laid off and observed that he had. thought that Bullock was not interested in the Union. When Bullock told him that originally he was not interested in the Union but had changed his mind, Hammer suggested that he change it again. Supervisor Hammer testified that on April 13, about 15 minutes before quitting time, he saw Bullock trying to pass a union button to one of the girls in the finishing, department. He said he checked with the girl to verify his observation and the employee confirmed his observation that Bullock was engaging in union activity during working hours. Hammer reported the incident to Plant Manager Humann- who told him to have a "talk with Roxie Bullock . . . to tell him how the company stood on those things." Hammer testified that he had a meeting with Bullock. He admitted that his. "memory (was) kind of poor" about what transpired at the meeting but remembered an explanation he had given Bullock about the layoff of certain employees and tell- ing Bullock "that the company didn't appreciate him, passing union buttons on company property and time." When asked if he recalled anything else that was, said about union activity on company time or company premises he stated, "Only- that as he (Bullock) thanked me for telling him the company's position he was. going out the door, he asked me something about-I don't remember it exactly- something about doing it on lunch hours and, let's see...... He then stated, on further questioning, that Bullock asked him if he could go outside the plant on coffee breaks and lunch hours and he replied in the affirmative. He denied that- Bullock asked him if he could engage in union activity during his lunch period or- during coffee breaks inside the plant. Hammer stated that he gave Bullock a warning- about his activities on company time but denied that he told Bullock that he was- next on the seniority list for layoff. Harvey Humann, plant manager, testified that Hammer told him about the button- passing incident and that he told Hammer that the fair thing to do was to warn Bullock about the violation of the November 8 notice prohibiting union activity- during working hours. He stated that the November notice was company policy, that it had been posted from that date forward, and that neither he nor Hammer had authority to depart from it. On June 9, 1961, after the complaint in this matter was issued, Respondent posted- another notice on its bulletin boards. The notice repeated the text of the November- 8, 1960, notice but added that, although the Respondent felt the earlier notice was clear, certain misinterpretations appeared to have arisen. Consequently, the Com- pany reiterated and "emphasized" in the notice that: there was to be no union- organization or other union activity during working hours; but that, "During any- period of time not a working period (lunch period, rest periods, etc.) employees are free to discuss among themselves any subject desired, including union organiza- tion." The notice stated further that no representative of the Company had au- thority to make any statement at variance with statements in the notice. The notice concluded by referring to an alleged statement of a supervisor that the plant might be closed if the employees joined the Union and stated, "The management is con- vinced that no such opinion was expressed by a supervisor, but to clear all doubts, you are advised that such statement does not reflect company policy.',' The Respondent's position regarding the no-solicitation phase of the case is, in- substance, that Hammer did not restrict Bullock's activity since Bullock's testimony- MIDLAND MFG. CO., DIV. OF PACIFIC INDUSTRIES , INC. 15 is not to be believed ; that even if Hammer did make the statements Bullock said he did the entire incident is trivial and exaggerated and, in the light of the whole record, including the November 8, 1960, notice , which was repeated and amplified in the June 9, 1961, notice which notices Hammer had no authority to alter, particularly in the light of his minor supervisory role, the conduct complained of cannot be considered as tantamount to the imposition of a "rule" against union activities at any time on company property as alleged in the complaint . Finally, Respondent , relying on certain language in N.L.R .B. v. United Steelworkers of America , CIO (Nutone Inc.), 357 U.S. 357 , contends that even if a rule was imposed by Hammer as alleged the rule was not illegal because the record establishes that, "By virtue of the location of the plant and the facilities and resources available to the union, the opportunities for effectively reaching the employees with a prounion message" are unlimited and as great as the opportunities available to the employer. I credit Bullock and find that on April 14, 1961 , Hammer, as Bullock testified, told him, in substance , that he was not to conduct any union activities on the company premises at any time and that this interdiction included lunch periods and coffee breaks. In making such finding I rely on my observation of the witnesses and the following: Hammer was a poor witness for the Respondent . As set forth above in narration of some of his testimony , he had a poor memory of events. Bullock was more positive and direct and I think his recollection was considerably more accurate than Hammer's. In the second place, Hammer, on April 19, 1961 , only 5 days after the April 14 conversation with Bullock, gave a sworn statement to an agent of the General Counsel of the Board in which he stated, in part, "I told him (Bullock) that he should not engage in union activity on company premises. I told him that he could even go outside the plant on his coffee break or lunch period and talk union if he wanted to. I said I felt it was not the right thing to do on company time or property." This prior statement, made shortly after the event, is in accord with the tenor of Bullock's testimony and reflects, in my view, the facts more accu- rately than Hammer's testimony at the hearing . In addition, Hammer did not deny Bullock's testimony that he told Hammer, in response to the supervisor's comment that he thought Hammer was not interested in the Union , that he had now changed his mind. This undenied testimony, considered in the light of the button passing incident of the day before, has the ring of truth.' Respondent's argument that the April 14 conversation between Hammer and Bullock is a trivial incident, exaggerated out of all proportion , which realistically cannot amount to the imposition of an illegal "rule" is more troublesome . It is true that the November 8, 1960, notice referring only to "working hours" had been posted from that date forward and that Bullock was familiar with it. Hammer , moreover, is only 1 of about 18 supervisors and normally had about 5 persons , of a staff of 300, under his supervision . Although, comparatively speaking , it cannot be said that this is a case of great moment , it cannot, on the other hand , be conceded that the conduct complained of is trivial . Hammer is the same supervisor who I have found stated on March 30 that the plant would close if it were organized and who made similar observations in the past . Despite the fact that his remarks apparently were made in ordinary, friendly conversations, such remarks are given weight by employees,2 and when, subsequently, the same supervisor restricts an employee's legitimate activities, even if we assume that he does it through ignorance or misunderstanding of company policy, his actions assume greater importance . As far as the employees in his depart- ment were concerned management was imposing a "rule" improperly restricting their activities . On balance, I think the right of employees to be free of this kind of interference with their rights under the Act is paramount in this situation .3 Finally, I think Respondent's reliance on the language in United Steelworkers of America, CIO v. N.L.R .B. (Nutone Inc.), supra, set forth above, concerning the loca- tion of the plant and the facilities , resources, and opportunities available to the union which enable it to reach the employees , is misplaced. In that case an admittedly valid no-solicitation rule was involved and the only question for decision presented was whether an employer may violate his own rule while enforcing it against his em- ployees. The applicable principle , in my view, is found in N.L.R.B. v. The Babcock 1I find that the attempt to pass the union button occurred after working hours. In doing so I do not rely on Lopez ' testimony since his recollection of this incident was unreliable . My finding is based on my acceptance of Bullock 's testimony rather than Hammer's. -'See N .L.R.B. v. Marvel Poultry Company, Inc., 292 F. 2d 454 (C.A. 4). 31 am aware of and have considered Respondent 's June 9, 1961 , notice here. It does not preclude the Board from issuing an appropriate cease-and-desist order. N.L.R.B. v. The Burke Machine Tool Company, 133 F . 2d 618, 621 (C.A. 6). 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD & Wilcox Company, 351 U.S. 105, where the Court stated that "no restriction may be placed on the employees' right to discuss self organization among themselves (during nonworking time ), unless the employer can demonstrate that a restriction is necessary to maintain production or discipline . Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803." In Walton Manufacturing Company, 126 NLRB 697, the Board interpreted the Republic Aviation, Babcock & Wilcox, and Nutone cases as establishing, among other things, a rule that no-solicitation rules which prohibit solicitation by employees on company property during their nonworking time are presumptively invalid as to their promulgation and enforcement; but that, however, such rules may be validated by evidence that special circumstances make the rule necessary to maintain production or discipline. There is no suggestion in the instant case that the rule in question relates to discipline or production in any way. I find that by announcing and enforcing a rule prohibiting employees from engaging in union activities and soliciting union membership on company premises during nonworking time, including lunch periods and coffee breaks, Respondent has inter- fered with , restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8 (a)( 1 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its business operations described in section I, above, have a close , intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing -commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in viola- tion of Section 8(a) (1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. .2. International Union of Electrical , Radio, and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct set forth in section III, above , Respondent interfered with, restrained, and coerced its employees and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Marathon, a Division of American Can Company and Thomas G. DeSantis, Sr. and Independent Oswego Printing Pressmen and Helpers Union Oswego Printing Pressmen and Assistants' Union No. 341, Inter- national Printing Pressmen and Assistants' Union of North America, AFL-CIO and Thomas G. DeSantis, Sr. Cases Nos. 3-CA-1517 and 3-CB-485. November 7, 1961 DECISION AND ORDER On May 26,1961, Trial Examiner Sidney Sherman issued his Inter- mediate Report in the above-entitled proceeding, finding that the 134 NLRB No. 5.