TRW Inc.

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 18 and the 5-cent per hour wage increase effective from July 1 an inter- ference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act, in view of the pending request to recognize based on a count of membership cards? Normally an increase in pay to employees in the face of a request to recognize, supported by membership cards from a majority of employees in an appropriate unit, violates the Act and indicates a lack of good faith in a respondent's doubt of majority. But, in the instant case, Respondent's doubt of majority is well founded on events that occurred in June 1965-the results of its balloting of employees and the letter from employees to the Union. I have found no unfair labor practice to have been committed in connection with these events. The charge was filed on July 1, 1965. Respondent sought to have the Union clear the representation ques- tion by filing a petition for an election, but the Union pressed its right to represent the employees based on the signed membership cards in its possession from a majority of employees. The increases announced on July 18, 1965, were not solely for the Sonora store, but included Value Giant stores in Woodland, Watsonville, and Livermore, California, and employees of Ames Mercantile Company conces- sions in Reno and Las Vegas, Nevada, and in Seaside, California. Under Respond- ent's wage increase program that existed prior to the July 18 announcement, employees would have received an increase to $1.50 after 65 days of employment? Under all the circumstances of the case, I find that the General Counsel has not sustained the burden of proof as to any unfair labor practice by Respondent or conduct showing that Respondent questioned the Union's majority in bad faith.8 It is recommended that the complaint be dismissed. 7 The wage increase announced on July 18 is not alleged in the complaint as a violation of the Act. 8 McQuay-Norri8 Manufacturing Company, 157 NLRB 1661 ; Hammond & Irving, Incorpo- rated, 154 NLRB 1071 ; Strydel Incorporated, 156 NLRB 1185; John P. Serpa, Inc., 155 NLRB 99; Oklahoma Sheraton Corporation, 156 NLRB 681 ; also see reasoning of Board in Jem Mfg., Inc., 156 NLRB 643. TRW Inc., TRW Michigan Division and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case 7-CA-5046. November 1, 1966 DECISION AND ORDER On January 3, 1966, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief.' Pursuant to Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Jenkins]. ' Respondent has requested oral argument. As the record , the Trial Examiner's Decision, and the exceptions and brief adequately set forth the issues and the position of Respond- ent, this request is hereby denied. 161 NLRB No. 63. TRW INC. 691 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 Trial Examiner's Decision, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.J TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner W. Edwin Youngblood at Lansing, Michigan, on August 26 , 1965, upon a complaint issued against the Respondent by the General Counsel on May 24, 1965 , upon a charge filed on February 5, 1965, by the Union. The point at issue is a narrow one , namely the validity of a rule pro- hibiting union solicitation and activity during working hours which the General Counsel alleges violates Section 8 (a)(1) of the Act. The General Counsel made oral argument at the close of the hearing and Respondent has filed a brief. Upon the entire record including my evaluation of the witnesses based upon the evidence and my observation of their demeanor , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio Corporation with its principal office and place of business at Cleveland, Ohio, and Respondent operates plants in various States of the United States including the one involved herein at Portland, Michigan (herein called the Portland Works). Respondent is engaged in the manufacture of motor truck chassis parts at its Portland Works, and during 1964 purchased and received at its Portland Works goods and materials valued in excess of $50,000 which were shipped directly from points outside the State of Michigan. During the same period , Respondent manufactured , sold, and shipped goods and materials valued in excess of $50,000 directly from its Portland Works to points outside the State of Michigan . Respond- ent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 1 Respondent has, for many years, maintained a rather liberal attitude toward talking among its employees during working hours. For example, its personnel director, Carl Hertwig, testified that Respondent had no formal rule against employ- ees talking with each other during working time , and that it was only when talking became excessive and interfered with production that it was challenged . Hertwig testified, as set forth in Respondent's brief, that: "Under our method of operation, an employee is not discharged for excessive talking the first time he engages in it. He is merely advised by his foreman . On the second time, he is given a blue memo which he signs and this goes into his personnel record . By excessive talking I am talking about talking that might interfere with production." On the same point, Works Manager Turkopp testified , "I would say we operate on the premise of pay- ing for eight hours a day worked and we expect to receive the same , and on minor conversations or other minor interruptions that don't interfere with acceptable effi- ciency, we do not take issue with it." In fact, Respondent 's policy is against adopting formal rules . For example , as long ago as 1954, Respondent stated in a bulletin to its employees (Respondent's Exhibit 11): "T. P . does not believe in a formal list of `Thou Shalt Not.' " Hertwig testified that this policy has not been changed. 'The findings herein are based on the pleadings and uncontradicted testimony andd, evidence. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from the record , as indeed Respondent admits, that it has through the years permitted various kinds of solicitation of its employees during working hours. Organized solicitations do require , however, the consent of management. Examples of this type of solicitation are those conducted for the TRW Employee Consolidated Welfare Fund and United States Government Bond Drives. The Welfare Fund is operated to collect and receive contributions from employees for charitable pur- poses. A checkoff system is used and in some years no solicitation is needed. In other years, solicitations have taken place and varying numbers of employees have been contacted during working hours. In 1959, 11 employees were solicited, in 1963, 44 employees were solicited , and in 1964, 37 employees . It was estimated that these solicitations took from 2 to 3 minutes per employee. Various numbers of employees have also been solicited to purchase Government bonds during working hours. Such solicitations may take about 3 minutes per employee. The solicitors or canvassers are trained in soliciting techniques by means of training films in meetings with Treasury Department agents. This type of solicita- tion usually occurs over a week's period with certain days designated for this pur- pose. In 1954, 267 employees were solicited, in 1956, 220 employees, and 178 employees were solicited in 1963 . No such solicitations occurred in 1964 or 1965. In addition, solicitations occur for the Pioneer Club raffles. The Pioneer Club is an employee organization which runs picnics, dances, sports, and other recreational activities for the benefit of Respondent's employees. Twice each year, the Pioneer Club, with the approval of Respondent's management, conducts a raffle. The first raffle is for the purpose of financing a picnic and usually occurs in July. The second raffle occurs in December. Some of the tickets for the raffles are sold during work- ing hours. Tickets are sold by the 10 employees who are members of the Pioneer Board, and some tickets are sold by foremen. Sales occur over a period of about 2 weeks in connection with these raffles. Hertwig estimated the sale would take only a matter of seconds with each employee, and stated that there had not been a noticeable decrease in production by reason of the ticket sales. In addition to the foregoing solicitations , employees were solicited during work- ing hours to contribute to a special fund when employee William Lalone died, and such solicitation was approved by one of Respondent's foremen. Respondent dis- courages this type of solicitation, however, because, as Hertwig testified , it tends to diminish the effectiveness of the Welfare Fund solicitation which is supposed to handle all such situations. Respondent has discouraged betting pools among its employees. For example, on March 23, 1965 , a bulletin was posted reading as follows: BULLETIN It has recently come to our attention that a check pool is operating among employees here at the plant. Gambling of this variety is, of course, illegal . While this activity begins small and harmlessly, it soon grows and runs out of control . Misunderstandings occur and friendships are broken. All employees who direct or participate in gambling of this variety are asked to discontinue this activity immediately. Personnel Dept. On November 10, 1964, Respondent received a letter from the Union reading as follows: Please be advised that the following employees have authorized the UAW to use their names and advise you that they are members of the UAW Organizing Committee in the Plant: Elroy Barnes Ronald Buck Floyd Luna Hilary Martin William Hill George D. Weber William Schneider Jack Green The above-named persons and others are engaged in self-organization and are assisting the International Union by various activities which are protected by Section 7 of the Labor Management Relations Act, as amended. As you know, it is unlawful to interfere with, restrain or coerce employees in their exercise of the rights guaranteed by Section 7 of the Act. Any restraint or coercion on your part in the exercising of their rights will result in unfair labor practice charges filed against you. TRW INC. 693 On the same day, Respondent promulgated and posted a document reading as follows: BULLETIN This morning's mail brought me the notification that eight of our employees are organized into a committee to unionize this plant. I do not like to see this development. I feel this can only lead to hard feelings, arguments, and future difficulties. The letter further points out that the law protects such people who are engaged in this activity; be assured that no malice or prejudice will ever be directed toward these employees. As you can appreciate, union organizing activity cannot be carried on during hours of work on company property. This type of solicitation is in violation of company rules and violators will be disciplined, including discharge. As you know, employees are free to converse on any subject during break and lunch periods. Bill Angst Angst was at that time Portland Works manager. Respondent had since that time continuously maintained and enforced said rule. The rule does not prohibit other types of solicitation and activities during working hours. As to specific instances of enforcement of the rule, the evidence establishes that two employees, Harry Hattis and Gary McQuillien were spoken to by Foremen Don Blundy and Arthur Martin, who are admittedly supervisors for Respondent, about soliciting for the Union. An employee named Kenneth McQuarrie had complained to Blundy that two employees talked union business to him and he wanted "to get them off his back." After inquiring if this occurred during working hours, and learning that it did, Blundy said that he would talk to the employees involved. About November 15, 1965, Blundy spoke to Harry Hattis who was under his supervision about the incident. Blundy told Hattis that they had received a com- plaint that Hattis was talking union during working hours, and Blundy told Hattis that he wanted to tell him about it "because he didn't want anybody to get hurt because of it." McQuillien was called about November 15, 1965, by his foreman, Arthur Martin, into the office. Martin told McQuillien that the foreman of "C" department had said that McQuillien was bothering somebody about signing a union card. Martin told McQuillien that he just wanted to see if McQuillien understood the bulletin, and that he could lose his job because of the solicitation. McQuillien replied that he understood. In Wm. H. Block Company, 150 NLRB 341, and Ward Manufacturing, Inc., 152 NLRB 1270, the Board held that a rule prohibiting solicitation for a union during working hours although presumptively valid was invalid if the rule was adopted for a discriminatory purpose.2 The General Counsel contends, and Respond- ent denies, that the rule involved herein was adopted for a discriminatory purpose. Thus the issue is the purpose of the promulgation of the rule, that is, whether or not it was adopted to defeat union organization 3 It is readily apparent from the foregoing that Respondent's policy is very per- missive toward talking among its employees or regarding organized solicitation of its employees during working hours so long as the talking is not excessive and the solicitations do not substantially interfere with production. Thus widespread talking has been permitted and widespread solicitation of its employees likewise has been permitted, even as many as 267 employes having been solicited during one solicita- tion. In addition, Respondent has had a policy against formal rules. Despite the foregoing policies, as soon as Respondent was notified of union organizing, it immediately promulgated and posted a formal rule prohibiting union organizing activity. It is apparent from the first two pai agraphs of the bulletin posted when 2 To the same effect, Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527. 3 At the hearing, Respondent sought to prove that the Union had an adequate oppor- tunity to carry its message to Respondent's employees. I sustained the objection of the General Counsel to this and rejected Respondent's offers of proof Respondent in its brief urges that my ruling was erroneous The Board rejected the contention of the Respondent in the Block case that General Counsel must establish that enforcement of the rule diminished the ability of the Union to reach the employees in order to establish a viola- tion. I adhere to the ruling made at the hearing 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rule was promulgated that Respondent' was' opposed to the union organizing campaign. As Respondent's works manager frankly stated in the bulletin about attempts to unionize the plant, "I do not like to see this development ...." True enough, the,bulletin continues by stating that the writer feels that union organiza- tion could only lead to hard feelings, arguments, and future difficulties. And Personnel Manager Hertwig, who participated in the decision to promulgate this rule, testified that the purpose of the rule was to protect productive time because he felt there would be "outbursts" and controversies on the floor among employees about the Union. The basis for this belief as stated by Hertwig was that some employees had indicated they came to work for Respondent because they liked a nonunion plant, and employees had indicated they might leave if the Union came in. But Respondent had had no experience with 'union organizing campaigns at all so far as the record shows. Thus they had no way of knowing how union organizing might affect their employees and their production. And under Respondent's policies iegarding excessive talking and solicitation of its employees, discharge was not even mentioned for infractions of these policies-not even for a second violation of the excessive talking policy. Yet the bulletin so promptly posted after union activity was brought to Respondent's attention threatened immediate discipline including discharge. Indeed discharge was not even threatened in the bulletin of March 23, 1965, regarding gambling in check pools. This bulletin merely asked that such gambling be discontinued. Thus it is clear that Respondent's normal policy of permissiveness toward talking among its employees and solicitation of its employees was not followed in the promulgation of the rule; rather a discriminatory policy was adopted toward union organizing. Respondent contends that the manner of enforcement of the rule demonstrates that it was adopted for a lawful purpose. In support of this contention, Respondent refers to the incident involving employees Hattis and McQuillien. This contention helps Respondent little because in this incident McQuillien was threatened with discharge, and Hattis with at least severe economic consequences for talking union business. And there is no evidence that more than minimal worktime was lost, or that excessive talking occurred. Thus the enforcement of the rule further demonstrates its discriminatory nature. Under all the circumstances, including the timing of the promulgation of the rule; the fact that Respondent's normally liberal policies about talking among its employees and solicitations of its employees were not followed, and a special policy adopted regarding union organizing despite the absence of any experience with union organizing campaigns; and the severity of,the sanctions imposed for infrac- tions of the rule, namely discharge, as contrasted with treatment accorded employees violating other policies, I am persuaded that Respondent promulgated this rule for a discriminatory purpose, namely to defeat union organization. It follows, there- fore, that the promulgation and enforcement of the rule was violative of Sec- tion 8(a)(1) of the Act and I so find.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent 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 obstruct- ing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organiza- tion, all within the meaning of the Act. 2. By promulgating and enforcing an invalid no-solicitation rule, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guar- A In its brief, Respondent urges that General Counsel 's contention is that the Union should be afforded carte blanche by Respondent to engage in union activities during work- ing hours, and were it to do so it might be found in violation of Section 8(a) (2) of the Act. I do not so understand General Counsel's contention, rather I construe it to be, as set forth above, that Respondent adopted this rule for a discriminatory purpose. Thus it seems clear that General Counsel seeks only that the Union be accorded the same treat- ment by Respondent as other organizations and groups regarding solicitation of Respond- ent's employees. Accordingly, I must reject this contention of Respondent. TRW INC. 695 anteed them by Section 7 of the Act and by such conduct engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent promulgated and enforced an invalid no-solicita- tion rule, it will be recommended that Respondent be ordered to cease and desist from maintaining such a rule, and that it post an appropriate notice to so inform its employees. RECOMMENDED ORDER Upon the foregoing findings and conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I recommend that TRW, Inc., TRW Michigan Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discriminatorily promulgating or enforcing a rule prohibiting employees from soliciting on behalf of the Union, or in any life or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as authorized in Sec- tion 8(a)(3) of the Act. 2 Take the following affirmative action which will effectuate the policies of the Act (a) Post, in conspicuous places, at its plant at Portland, Michigan, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Directors, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.6 5 In the event that this Recommended Order is adopted by the Board, the words "a Deci- sion and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order" 0In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL rescind our no-solicitation rule promulgated on November 10, 1964. WE WILL NOT discriminatorily promulgate , maintain, or enforce any rule prohibiting our employees from soliciting on behalf of a union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as authorized in Section 8(a)(3) of the Act. TRW INC., TRW MicmoAN DlvlsloN, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan 48226, Telephone 226-3244. Sucesion Mario Mercado E Hijos d/b/a Central Rufina and Sindi- cato De Obreros Unidos Del Sur De Puerto Rico. Case 24-CA- 2115. November 1, 1966 DECISION AND ORDER On March 16, 1966, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision together with a supporting brief., 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and finds merit in certain of the Respondent's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent herewith. The Trial Examiner, relying basically on Fibreboard,2 found, in effect, that the Respondent, although economically motivated, vio- lated Section 8 (a) (5) and (1) of the Act by unilaterally deciding to cease prematurely its sugarcane grinding operation for the 1965 grinding season, by unilaterally subcontracting the unit work of grinding such of the sugarcane as remained to to be ground during this season, and by thereafter refusing to bargain with the Union i At the hearing, the Trial Examiner permitted the Association of Sugar Producers of Puerto Rico to intervene in this proceeding for the limited purpose of filing a brief with the Trial Examiner. 2Fibreboard Paper Products Corporation, 138 NLRB 550, enfd. 322 F.2d 411 (C.A.D.C.), affd. 379 U.S. 203. 161 NLRB No. 59.