Korn Industries, Inc.

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL embody in a signed written document any and all agreements reached with the said International Union of Operating Engineers, Local 826, AFL-CIO. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of Operating Engi- neers, Local 826, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named or in any other labor organization. H & W CONSTRUCTION COMPANY, INC., 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, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele- phone Edison 5-4211. Korn Industries, Inc. and United Furniture Workers of America, AFL-CIO. Cases 11-CA-2870 and 2884. November 14, 1966 DECISION AND ORDER On April 19, 1966, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of 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 [Chairman McCulloch and Members Brown and Zagoria]. 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 briefs, and the entire record in the case, and adopts the findings of the Trial Examiner only to the extent consistent herewith. 161 NLRB No. 65. KORN INDUSTRIES, INC. S67 1. THE UNFAIR LABOR PRACTICES A. The refusal to bargain Unlike the Trial Examiner, we find that Respondent violated Sec- tion 8(a) (5) of the Act by refusing to bargain in good faith with the Union. The Charging Party, hereinafter called the Union, was certified as bargaining representative of Respondent's employees early in 1963, and it thereafter entered into a 1-year contract with the Respondent which expired sometime in February 1965.1 Prior to the expiration date, the Union notified Respondent of its desire to modify the con- tract. Respondent then initiated a representation case and the Union won the election by a vote of 173 to 81. On June 2, following the ballot count, Grant Williams, the Union's representative, asked Respondent's attorney, Karl McGhee, to set up a negotiating session as soon as possible. A week or 10 days later, McGhee called Williams and scheduled the first meeting for June 30. On June 26, McGhee telephoned Williams , explaining that he was "in a bind to meet the conditions of the new Civil Rights Act, which was to become effective on July 2," and asked Williams to read the proposed plan Respondent had prepared allegedly to comply with the requirements of that status. Williams agreed. McGhee mailed the material, which consisted of a proposed job category system accom- panied by a three-page explanation entitled "Job Evaluation and Category System." Under the plan, all jobs in the bargaining unit were classified and placed into one of nine separate categories, and a wage scale was established for each category. Thus, for example, the wage scale of the jobs within category 1 was between $1.25 and $1.30 per hour, and the wage scale of the jobs within category 9 was between $1.80 and $2.10 per hour. Listed under each job classification were the name of the employee working in that job, their dates of hire, and wage rates. The plan also established a merit system for each category which provided for an employee's work to be evaluated at established intervals over a period of approximately 4 years and wage increases awarded on the basis of such evaluations. The parties held their first meeting on June 30. The Respondent was represented by McGhee and Plant Superintendent Johnson, while Williams and a committee of employees represented the Union. At this meeting, McGhee requested the Union's permission to put the above wage plan into effect, but stated that even without the Union's consent, "the plan would go into effect on July 2" allegedly to comply with Title VII of the Civil Rights Act of 1964 by that date. Williams I Unless otherwise noted, all dates are in 1965. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that Respondent's proposed wage plan, herein called the wage system, was "nothing more than a general wage increase" and that while the Union was agreeable to any adjustment in individual wages necessary to comply with Tile VII of the Civil Rights Act, it would not agree to a general wage increase. Williams then stated that the Union did not wish to be maneuvered into a position similar to that in which it found itself during the past contract negotiations, when Respondent, prior to the negotiations, put into effect a general wage increase of 10 cents per hour, allegedly to comply with the require- ments of the Federal Minimum Wage Law, and thereafter refused to, make any further concessions on wages during negotiations. Williams also objected to the wage system since it provided that each employee would be evaluated for a wage increase at established intervals without providing the Union the right to dispute Respond- ent's determinations thereunder. Although requested by the Union, McGhee refused to agree that the grievance and arbitration proce-, dures of the expired contract would apply to this ,part of the wage system, stating "that Union bargaining had never had any influence on wages in that plant and would not have any in the future." The meeting ended following the Union's presentation of its eight-point. proposal to modify the previous contract. Thereafter, on July 2, and without further discussion with the Union, Respondent put into effect its proposed wage system. At the next bargaining session on August 13, the Union made .a written request for certain items of information relating to job, descriptions and the new wage system.2 After reading the request,. McGhee stated that it was "silly," because he had allegedly given this information and, in any event, "if there's anything you don't know you can ask the employees." Also, at this meeting, Williams again objected to the merit increase portion of the wage system on the ground that neither the Union nor the employees would have any appeal from Respondent's actions regarding wages. McGhee re- sponded, "Oh, yes, there is a recourse if an employee does not get a raise, he can ask us and we'll tell him why." It appears that the par- ties continued to engage in collective-bargaining negotiations, al- though the record does not establish the nature of those negotiations. The complaint alleges that since on or about June 30, Respondent has refused to bargain in good faith with the Union in violation of- Section 8(a) (5) : (1) by unilaterally instituting a wage system which included a general wage increase and a merit rating plan; (2) by refusing the Union's request for information relating to this system and relating to jobs in the unit; (3) by negotiating with the Union in bad faith with no intention of entering into a final agreement, and 2The specific items of information requested are discussed below. KORN INDUSTRIES, INC. 869 by asserting to employees that the presence of the Union would in no way affect wage policies. The Trial Examiner recommended that all of these allegations be dismissed. We disagree. 1. The Trial Examiner found that Respondent's institution of the wage system did not amount to "unilateral action," violative of Sec- tion 8 (a) (5), because, although no impasse had been reached which would otherwise justify the unilateral action, all the parties under- stood that further bargaining regarding it would occur. We disagree with this reasoning. It is well established that an employer normally violates Section 8(a) (5) of the Act when it uni- laterally increases wages or modifies other terms and conditions of employment during collective-bargaining negotiations unless a bar- gaining impasse is reached before the changes are made.3 Respondent does not contend that an impasse had been reached in bargaining negotiations. It claims only that it was justified in taking the unilat- eral action because it was required to institute the wage system on July 2, in order to comply with the provisions of Title VII of the Civil Rights Act 4 We find it unnecessary to reach the hypothetical question whether Respondent would have violated Section 8(a) (5) if it unilaterally instituted a wage system required by the provisions of Title VII because we are convinced that the unilateral changes went far beyond what was necessary to comply with this legislation, and these changes patently were not an attempt to comply with Title VII. Most signifi- cant in this regard is the fact that under the wage system the increase granted was, with a few exceptions, a 5-cent-per-hour across-the- board wage increase. Certainly, this type of increase, on its face, can hardly be characterized as an attempt to eliminate any wage differ- entials among employees based on sex, race, or color, particularly in light of the fact that of the 284 employees in the bargaining unit only about 19 appear to be women and Respondent did not offset any evidence to show how many employees, if any, are members of minority races. Furthermore, the wage system provided for a merit increase program over approximately a 4-year period. Respondent does not show, and we cannot perceive, how a merit system would constitute compliance with a statute that requires that an employer refrain from discriminating among employees on the basis of sex, race, or color. Also tending to discredit Respondent's claim that the wage system was instituted to comply with Title VII is the fact that 7 months 8 N L.R B. v. Katz, 369 U.S. 736. * The act, approved by Congress on July 2, 1964, provided that employers covered were required within 1 year to comply with certain of its provisions including the requirements of Title VII which prohibits inter aiia, discrimination with respect to "compensation , terms, conditions or privileges of employment because of race, color, religion,. sex or national origin ." (Pub. L. No. 88-352, $ 70382.) 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD later, on the day before the hearing in the instant proceeding, McGhee gave Williams a proposed revision of the wage system it had unilat- erally instituted on July 2, explaining that Respondent was required to give still further wage increases in order to comply with Title VII. When Williams asked why it was necessary to make further changes to effect compliance, McGhee reminded Williams that he had recently mentioned to him that one of the reasons it had to institute further charges was because "employees were leaving for better jobs," and Respondent "needed to put in another increase to stop people from leaving the factory." These statements, based on the uncontradicted testimony of 'Williams, constitute a virtual admission by Respondent that its unilateral actions on wages were not limited to the require- ments of Title VII. There is further evidence that Respondent's institution of the wage system was in bad faith and in derogation of its duty to bargain. Thus, we note that under the Civil Rights Act, enacted in 1964, Respondent had 1 year to comply with its provisions. Respondent admits in its brief to the Board that several months were spent in preparing the wage system. Yet, Respondent offered no explanation why it waited until 2 days before it was allegedly required to n>»ke the change to inform the Union of the proposed plan, at which time it told the Union that the plan would go into effect on July 2 even without the Union's consent. In refusing to find that the unilateral change in terms and condi- tions of employment violate Section 8(a) (5), the Trial Examiner relied principally on the fact that Respondent was willing to continue and in fact did continue to negotiate with the Union after it unilat- erally instituted the wage system. But any effective bargaining on the subject of wages would necessarily have been obstructed as a result of Respondent's having already put the wage plan in effect over the objection of the Union.5 Accordingly, we find that by unilaterally instituting the wage plan on July 2, 1965, Respondent violated Sec- tion 8(a) (5). 2. Contrary to the Trial Examiner, we also find that Respondent's refusal to furnish the Union with the specific documents and infor- mation it requested violated Section 8(a) (5) of the Act. Respondent unilaterally instituted the wage system on July 2. The Union, at the August 1.3 meeting, submitted a written request to Respondent for certain data including (1) a list of existing jobs and the duties and responsibilities required in their performance; (2) data on standards used in determining the merit ratings in the wage system placed into effect on July 2; (3) performance records of employees covered by the wage system; and (4) any timestudy data 5 N.L.R.B. v. Katz, supra. KORN INDUSTRIES, INC. 871 which relates to present job standards and job rates. Respondent's attorney termed the request "silly," and stated that no such data existed. The Trial Examiner recommended that the complaint be dismissed insofar as it alleged that Respondent also violated Section 8(a) (5) by its failure to supply the requested information on the ground that no independent proof was offered at the hearing to indicate that such documents existed "in the form requested by the Union or in any form...." It is well settled that the duty of an employer to bargain includes the obligation, upon request, to furnish union representatives such information as is necessary to enable a union to bargain intelligently and to discuss issues raised by an employer in opposition to union demands,° and that he is not relieved of this duty unless furnishing the information would cause him undue hardship.' More specifically, the Board has found that an employer violates Section 8(a) (5) by refusing to give to the Union which represented these employees the names, classification, wages, rates, and seniority positions of employ- ees in the appropriate l.init8 and that it violates Section 8(a) (5) by refusing to give to the Union its merit system records regarding unit employees.9 Thus, it is clear that the Union here was presumptively entitled to the requested data regarding unit jobs and the operations of the merit rating plan included in the wage system. Respondent makes no contention that the requested data was not relevant or necessary to bargaining negotiations nor does it claim that furnishing his information would constitute undue hardship. It argues only that such data did not exist and thus its refusal was justi- fied. We find this defense without merit. In the first place, Respond- ent offered no affirmative evidence to support its statement that the data did not exist. Moreover, even if the information. did not exist in collected form, the information about unit jobs and at least some of the information about the merit rating system must have existed or been available somewhere since Respondent proposed to act on the basis of such information. Yet respondent made no effort at the bargaining session to present any of the information even orally. Accordingly, we find that Respondent violated Section 8(a) (5) by refusing to furnish the Union, to the extent that such information was available, with the requested data.70 e N.LJh.B. v . Truitt Mfg. Co., 351 U. S. 149, 152. 7 Westinghouse Electric Corporation , 129 NLRB 850, 865. 8 Whitin Machine Works, 108 NLRB 1537 , enfd. 217 F. 2d 593 (C. A. 4). B Southern States Equipment Corporation,' 124 NLRB 833. "Although we are ordering Respondent to revoke the wage system it unilaterally in- stituted , since the wage system has presumably been in effect since July 1965 , the Union is entitled to details regarding its operation. '872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We further find, contrary to the Trial Examiner, that Respondent's ,entire course of conduct from the commencement of the bargaining negotiations reflects that Respondent entered and participated in these negotiations without a "sincere desire" to reach agreement on the issues in a "spirit of amity and cooperation." 11 We have already found that Respondent violated Section 8 (a) (5) by unilaterally insti- tuting the wage system, while negotiations were in progress and over the objections of the Union, and by refusing to furnish certain infor- mation, relevant to the negotiations, which had been requested by the Union. We also find that McGhee's statement "that Union bargaining had never had any influence on wages in that plant and would not have any in the future," made in the presence of employees during a bargaining session was not only such as to tend to interfere with and restrain employees in the exercise of their Section VII rights thereby violating Section 8(a) (1) but also evidenced an intention on Respondent's part not to bargain in good faith with the representa- tive of its employees. Clearly, the import of Respondent's total con- duct herein reflects a rejection of the principles of collective bargaining. Accordingly, on the basis of Respondent's entire course of conduct beginning on June 30, 1965, we find, that Respondent has failed to bargain in good faith with the Union, in violation of Section 8(a) (5) and (1) of the Act. B. The discharge of Charles W. Campbell The complaint also alleges that Respondent violated Section -8 (a) (3) and (1) by discharging employee Campbell on October 21, 1965, for distributing union literature in violation of a company no-distributon rule. Respondent has had in effect, since 1954, a rule providing as follows : Distribution of literature : Good housekeeping on the premises contribute to safe working conditions and quality work. In order to maintain good housekeeping, the distribution on the premises by anyone of any literature, pamphlets, or handbills will not be permitted except as made by Korn Industries in aid of its operations. The Trial Examiner found, and the record establishes, that on October 21, Respondent discharged Campbell, pursuant to this rule. In late August 1965, Campbell was observed distributing union leaf- lets while standing in the doorway to the plant building partly out- side the entrance to the plant itself.12 At this time Ragan, the plant n N L.R.B. v. Atlanta Broadcasting Co , 193 F.2d 641 , 642 (C.A. 5). 12 In its brief Respondent stated that this entry was 30 to 40 feet from the main work areas of the plant and at least 11 to 12 feet from the working shop. KORN INDUSTRIES, INC. 873 , superintendent, warned Campbell that there was a company rule pro- hibiting such activity and told him not to distribute union literature. On September 17 and October 13, Campbell was again observed dis- tributing union literature standing in about the same position at the plant entrance. On October 21, Ragan discharged Campbell after finding him again passing out union literature at the plant entrance.ls The Trial Examiner found that the no-distribution rule was valid and that the discharge of Campbell for violation of the rule was law- ful. We disagree. Respondent's rule by its terms applies to both working and non- working areas of the plant premises, and, as noted, Campbell was dis- charged for distributing literature while in the doorway of the plant which the Board has held to be a nonworking area. It is well settled that a rule prohibiting the distributing of union literature in non- working areas of the plant during nonworking hours is presump- tively invalid unless it can be established that there are special cir- cumstances which make the rule essential to the orderly maintenance of production and discipline at the plant. The Trial Examiner found that such special circumstances existed and that the no-distribution rule was valid because it was promul- gated before the Union began its initial organizing campaign as a precaution against fire hazards and because the evidence indicated that the rule had not placed any unreasonable restraint on the Union's activity. We disagree. The only evidence tending to overcome the pre- sumption of invalidity is Plant Manager Johnson's testimony con- cerning a fire at'the plant in 1942 and another fire in 1952 and Plant Superintendent Ragan's testimony that the purpose of the rule "is to maintain better housekeeping and to prevent fires and make it-safer to work, and of course to help with and maintain a quality product." 14 But mere assertions hardly prove that it was actually "necessary" for Respondent to prohibit its own employees from distributing union leaflets in nonworking areas on nonworking time in order to "main- tain production or discipline" or to prevent fires. And, other than these conclusionary statements, Respondent offered no affirmative proof to establish that the operations of its furniture plant were such as to create the potentiality of greater fire hazards through the distri- bution of literature than would be so in other types of manufacturing plants. While Respondent refers to two fires that occurred at the plant, the most recent of these took place 13 years before the discharge of Campbell, and Respondent's witness did not know whether paper 13 There is no contention that Campbell was on working time when the distributions took place. 14 The Trial Examiner's reasoning adverting to "fire prevention campaign propaganda widely publicized throughout all industry " isnot „supported by. the record as there is no. evidence of any fire prevention campaigns by the Respondent. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD littering caused the fire. Also, there was a gap of 2 years between the 1952 fire and the alleged adoption of the rule in 1954; and the rule itself refers to "housekeeping" and "safe working conditions" without mentioning fire hazards. In view of the foregoing, we find, contrary to the Trial Examiner, that the no-distribution rule was invalid on its face and that Respond- ent's promulgation and implementation of the rule violated Section 8 (a) (1) of the Act 15 Under the circumstances, we also find that the discharge of Camp- bell for violating this unlawful rule,16 was discriminatory and in vio- lation of Section 8 (a) (3) and (1) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth above, occur- ring in connection with the operations of the Respondent, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to, lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Korn Industries, Inc., is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2) of the Act. 2. United Furniture Workers of America, AFL-CIO, is, and has been at all times, material to this proceeding, a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since June 2, 1965, United Furniture Workers of America, AFL-CIO, has been the exclusive representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, of all production and maintenance employees at Respondent's Sum- ter, South Carolina, plant, excluding all managerial employees, office clerical employees, foremen, assistant foremen, watchmen and guards, employees of the Hardwood Division, and all other supervisors as defined in the Act. 4. By promulgating, maintaining, and enforcing its rule prohibit- ing employees during nonworking time from distributing handbills or other literature on behalf of any labor organization in nonworking Is Miller Charles and Company, 148 NLRB 1579, 1580, enfd. 341 F 2d 870 (CA 2) '° The Trial Examiner found that Campbell's insolent behavior in his several encounters with Plant Superintendent Ragan was "sufficiently grievous" so as to justify his dis- charge. However, since the parties stipulated that Respondent discharged- Campbell for violating the no-distribution rule, we find it unnecessary to reach the issue of whether this alleged insolence would under other circumstances have constituted a cause for his termination. BORN INDUSTRIES, INC. 875 areas of Respondent's plant, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By discriminatorily discharging Charles W. Campbell for vio- lating this rule, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and ( 1) of the Act. 6. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. By instituting unilaterally a wage system; by refusing to fur- nish data to the Union; and at all times since June 30, 1965, by fail- ing to bargain in good faith with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondent has engaged in various unfair labor practices affecting commerce, we shall order that it cease and desist therefrom and take certain affirmative action. designed to effectuate the policies of the Act. Having found that Respondent failed to bargain collectively with the Union in good faith in violation of Section 8(a) (5) of the Act, among other things, by unilaterally instituting a wage rate system including a "merit system ," and by refusing to furnish certain data to the Union, we shall order that Respondent rescind, upon request of the Union as the exclusive representative of the employees in the appropriate unit, the wage system now in effect; that, upon request, Respondent furnish relevant requested data to the Union, and that Respondent bargain collectively, upon request, with the Union, and, if an understanding is reached, embody such understanding in a signed agreement. Having also found that Respondent unlawfully discharged Charles W. Campbell on October 21, 1965 , for violating an unlawful no- distribution rule, we shall order that Respondent offer him immediate and full reinstatement to his former or to a substantially equivalent position , without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of earnings he may have suf- fered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid data of discharge to the date of Respondent's offer 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of reinstatement less his net earnings during such period. The back- pay provided herein shall be computed on the basis of calendar quar- ters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the man- ner set forth in Isis Plumbing of Heating Co., 138 NLRB 716. Because of Respondent's failure to bargain in good faith, its uni- lateral- actions, its refusal to furnish relevant information regarding wages and other terms and conditions of employment, and its discrim- inatory discharge of employee Campbell, it is reasonable to conclude that Respondent in the future, unless specifically enjoined, may deny its employees their statutory rights not only in these, but in other ways as well. Therefore, we shall also order Respondent to cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Korn Industries, Inc., Sumter, South Carolina, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms and conditions of em- ployment with United Furniture Workers of America, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit : All production and maintenance employees at Respondent's Sum- ter, South Carolina, plant, excluding all managerial employees, office clerical employees, foremen, assistant foremen, watchmen and guards, employees of the Hardwood Division, and all other supervisors as defined in the Act. (b) Unilaterally instituting changes in wages, rates of pay, or other terms and conditions of employment of its employees in the above-described appropriate unit without first consulting and bar- gaining with the Union. - (c) Refusing to furnish to said labor organization, on request, the data described in paragraph 2(c) of this Order. (d) Promulgating, maintaining, or enforcing any rule or regula- tion prohibiting employees during nonworking time from distribut- ing handbills or other literature in behalf of any labor organization in nonworking areas of Respondent's plant. (e) Discouraging membership of any of their employees in United Furniture Workers of America, AFL-CIO, or any other labor orga- KORN INDUSTRIES, INC. 877 nization, by discharging or in any other manner discriminating against any employee in regard to his hire, his tenure of employment, or any other term or condition of his employment. (f) Telling employees that bargaining with the Union could not influence Respondent's wage decisions, or otherwise interfering with the right of employees to bargain collectively through representatives of their own choosing. (g) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively with 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 or all such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. (b) Upon request of the above-named Union, rescind the plan which Respondent unilaterally instituted on July 2, 1965, and revert to the wage system existing immediately prior thereto, except that nothing herein contained shall be construed as requiring the Respond- ent to revoke any wage increase which it has heretofore granted. (c) Upon request, make available to the Union data concerning existing jobs in the bargaining unit and the duties and responsibili- ties required in their performance; a list of the standards used by the Company determining merit ratings; any studies made to establish present job standards and rates; and copies of performance records of unit employees, if available. (d) Revoke and rescind the no-distribution rule now in effect to the extent that it prohibits employees during nonworking time from distributing handbills or other literature on behalf of any ,labor organization in nonworking areas of Respondent 's plant. (e) Offer to Charles W. Campbell immediate and full reinstate- ment to his former or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and other records necessary to analyze the amounts of backpay due to Charles W. Campbell. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Post at its plants in Sumter, South Carolina, copies of the attached notice marked "Appendix." 17 Copies of said notice, to be furnished by the Regional Director for Region 11 after being duly signed by the Company's representative, shall be posted 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. The Company shall take reason- able steps to ensure that such notices are not altered, defaced, or cov- ered by any other material. (h) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (i) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. "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 "a Decision and Order" the words "a. Decree of the United States Court of Appeals Enforcing an Order." 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 refuse to bargain collectively with United Furni- ture Workers of America, AFL-CIO, as the exclusive bargaining representative of our employees by refusing to provide it with records pertaining to jobs in the unit and their responsibilities and pertaining to the wage system instituted on July 2, 1965, or by instituting unilateral changes in wages or other terms or con- ditions of employment. WE WILL NOT discourage membership in, or activities on behalf of United Furniture Workers of America, AFL-CIO, or any other labor organization, by discharging any of our employees or in any other manner discriminating against our employees in regard to hire or tenure of employment or any other term or con- dition of employment, because of their union membership or activities. WE WILL NOT promulgate, malintain, enforce, or apply any rule or regulation prohibiting our employees, when they are on nonwork- ing time, from distributing handbills or other literature on behalf of any labor organization in nonworking areas of our property. KORN INDUSTRIES, INC. 879 Insofar as our no-distribution rule so restricts the rights of employees, it is hereby rescinded. WE WILL NOT tell employees that bargaining with the Union could not influence our wage decisions or any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right of self-organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL, upon request, bargain collectively with United Furni- ture Workers of America, AFL-CIO, as the exclusive representa- tive of all employees in the bargaining unit described below con- cerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The appropriate unit is: All production and maintenance employees at the Sumter, South Carolina, plant of Korn Industries, Inc., excluding all manage- rial employees, office clerical employees, foremen, assistant fore- men, watchmen, guards, employees in the Hardwood Division, and all other supervisors as defined in the Act. WE WILL, upon request, revoke the incentive wage rate system for our employees which we unilaterally instituted on or about July 2, 1965, and revert to the wage system that existed imme- diately prior thereto, except that nothing herein contained shall be construed as requiring us to revoke any wage increase hereto- fore granted. WE WILL, upon request, make available to the Union data con- cerning existing jobs and the duties and responsibilities required in their performance; a list of standards used by the Company in determining merit ratings; any studies made to establish pres- ent job standards and rates; and copies of performance records of unit employees. WE WILL offer to Charles W. Campbell immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. All our employees ate free to become, remain, or to refrain from becoming or remaining, members of any labor organization. MORN INDUSTRIES, INC., Eimployer. Dated---------------- By------------------------------------- (Representative ) ( Title) 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify Charles W. Campbell if presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges and an amendment thereto filed on October 11 and 22 and Novem- ber 30, 1965, respectively, by United Furniture Workers of America, AFL-CIO, herein called the Union, the Regional Director for Region 11 of the National Labor Relations Board, herein called the Board, issued a consolidated complaint on behalf of the General Counsel of the Board on November 30, 1965, against Korn Indus- tries, Inc., Respondent herein, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Aot. In its duly filed answer Respondent while admitting certain allegations of the complaint denied the commission of any unfair labor practice. Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher on February 16, 1966, at Sumter, South Carolina, where all parties were present, afforded full opportunity to be heard, to present oral argument, and to file briefs with me. Briefs were filed by Respondent and by counsel for the General Counsel on or before March 28. Upon consideration of the entire record, including briefs filed with me, and upon my observation of each witness appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE RESPONDENT Korn Industries, Inc., Respondent herein, is a South Carolina corporation with a plant located at Sumter, South Carolina, where it is engaged in the manufacture of furniture. During the most recent annual period Respondent manufactured fin- ished products valued in excess of $50,000 and sold and directly shipped from its Sumter plant, finished products valued in excess of $50,000 to points, and places outside the State of South Carolina. During the same annual period it caused to be shipped directly to its Sumter plant from points and places outside- the State of South Carolina, goods valued in excess of $50,000. Upon the foregoing conceded facts I conclude and find the Respondent to be an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded and I therefore conclude and find that United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. M. THE ISSUES 1. The good-faith character of the bargaining negotiations. 2. The negation of unilateral action by agreement to bargain further on subject matter. 3. Nonexistence of documents as justification for failure to produce them. 4. No-distribution rule justified as safety precaution. - 5. Discharge for insubordinate conduct relating to distribution of literature. KORN INDUSTRIES, INC. 881 IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Negotiations between Company and Union Contractual relations between the Company and the Union have existed since shortly after the latter's certification as the employees' bargaining representative in 1963. In February 1965, when the most recent contract between the parties was about to expire, the Union filed with the Company the required 60-day notice of its desire to modify the existing contract. The Company thereafter initiated a representation proceeding (RM) with the Board's Regional Office and as a conse- quence an election was held among the employees on June 2, 1965, as a result of which the Union was retained by the employees as their representative by a vote of 173 to 81. On the occasion of the counting of the ballots the Union's representa- tive, Grant Williams, arranged with the Company's attorney, Karl McGhee, for a meeting to negotiate a new contract. This meeting was set for June 30. Several days prior to the date set for the meeting McGhee called Williams at his home in High Point, North Carolina, and asked him to review some materials that were being prepared for the Company as part of its compliance with the recently enacted provisions of Title VII of the Civil Rights Act of 1964 which required equal treatment to male and female employees. These changes were also intended to comply with certain revisions in the minimum wage law. These mate- rials were received by Williams at his home on June 28 and he came to Sumter on the following day, preparatory for the June 30 meeting with the Company. The materials submitted to the Union by the Company and introduced into the record by counsel for the General Counsel consisted of a 3-page typed document entitled "Explanation of Job Evaluation and Category System," and a 34-page document described at the hearing by Union Representative Williams as a job evaluation plan and wage increase system whereon the Company had listed under nine separate job categories the names of all of its production and maintenance employees, by job classification, together with their date of original hire and the wage to which each would be entitled under the proposed revision. In addition, each of the nine job categories were subdivided into the job classifications within each job category, and contained a statement, relating individually to each category, of the progressive wage increases contemplated by the plan. At the June 30 meeting Respondent was represented by Attorney McGhee and Plant Superintendent R. C. Johnson. Representative Williams represented the Union and was accompanied by a committee of employees. The documents previously given to Williams were discussed in detail. Williams described these thus: Mr. McGhee repeated what he had told me on the telephone, that he was in a bind to get in compliance with the Civil Rights Act which was to become effective on July 2 and asked if he might present to us and explain in detail these plans. Mr. McGhee did explain the plan and asked for permission for him to put it into effect. I told Mr. McGhee that I had little opportunity to look the plan over, but it did appear to me that it was nothing more than a general wage increase, that it provided 5 cents an hour general increase to all the employees except half a dozen or so people who received more than 5 cents an hour, some of them 10 and perhaps one person must have received 15 cents, and I told Mr. McGhee that it didn't appear that it was an adjustment of the wage scale at the plant, it was a general wage increase and that the Union wished to bargain over the question of general wages. Five cents an hour didn't appear to be in line with what the employees desired in the way of a general wage increase, and that I would be willing for him to put in effect any adjustments called for under the Civil Rights Law, but I asked him not to put in any wage increases that were not required under the Law. TRIAL EXAMINER: You told him you didn't want him to increase the employ- ees' wages? The WITNESS: Yes sir, a general wage increase. TRIAL EXAMINER: All right. The WITNESS: I felt it was a bargaining matter and we were just starting negotiations and I would like to look the question over on wages along with all the other issues. I Thereafter the Union submitted its proposals, relating them to the recently expired contract, as follows:, 1. Add two paid holidays. (Thanksgiving Day & Labor Day). (Refer to article 13). 264-188--67-vol. 161-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Increase wages 25-cent-per-hour across-the-board. (Refer to article 9). 3. Switch from present commercial insurance plan to the United Furniture Workers of America insurance plan and the total cost to be defrayed by the Company. (Refer to article 10). 4. Adopt a comprehensive pension and defray the total cost. (The Union submits, herewith, for consideration its Pension Plan A). 5. Modify article 4, Arbitration. 6. Modify article 2, Hours of Work. 7. Modify article 13, Vacation & Holiday, by providing a second week vacation for employees who have completed five years of service. 8. Adopt the check-off system for the convenience of employees in the payment of union dues. And finally Attorney McGhee submitted for the Union's consideration a proposed contract which General Counsel stipulated was presented at this meeting and which Union Representative Williams concedes to have been the Company's proposal. Included in this proposed contract were provisions carried over from the previous agreement, including a grievance procedure and provision for the Union's exclusive use of a bulletin board erected by the Company. The wages sought to be established by this proposal were those incorporated in the documents which McGhee had previously submitted to the Union and discussed above, being the revisions required by changes in the Wage and Hour Law and by Title VII of the Civil Rights legislation. As previously noted, the Union's representative resisted accepting the Company's wage plan at the June 30 meeting despite assurances made him by Attorney McGhee that the Union would be given full credit for having effected the increases. In this respect it is to be particularly noted that the increases contained in the Company's proposal were not merely those required by operation of law but, according to Union Representative Williams, when asked if Respondent had any choice about the granting of the 10-cent increase: What I'm talking about, sir, is Mr. McGhee granted more than what was required under the law. In the end, this offer was rejected by Williams who, at the hearing, explained his position thus: I also told Mr. McGhee that such actions would destroy the prestige of the union, that the membership would tend to feel that the union was unable to do anything more for them than to accept increases which were provided by law.... Whereupon McGhee stated that either with or without the Union's consent the wage plan would be put into effect on July 2. The Company did put the proposed plan into effect on this date. The next bargaining session was held on August 13. On this occasion the Union presented McGhee with a document listing certain items of information which they were requesting of the Company for purposes of further bargaining. These were: 1. A complete list of existing jobs, including the duties and responsibilities required in their performance. 2. Complete data on all standards used by the company in determining merit ratings as employed in the wage plan unilaterally placed into effect on July 2, 1965. 3. Copies of performance records of each employee covered by the merit system unilaterally placed into effect on July 2, 1965. 4. Copies of all original timestudy data that has any bearing on deter- mining present job standards and job rates. McGhee read this request and returned it to Williams, stating that it was "silly." He elaborated, stating that the union people were familiar with the furniture business and knew the nature of the jobs involved, and if there were anything they did not know they could ask the employees themselves. The Union was never given this requested information. However, upon cross-examination Union Representative Williams credibly testified that at the time of the request he was informed that as to the first requested item no job descriptions were made of the various classifica- tions in the plant; as to the second requested item, data as to merit ratings stand- ards, he was told there were no such data; as to the third required item, performance PORN INDUSTRIES, INC. 883 records of each employee covered by the merit system, he was told that no such records were kept on the employees; and as to the fourth rquested item, original time study data, he was again told that there was no such information kept. 1. The specific allegations of refusal to bargain It is alleged that Respondent has refused to bargain in good faith with the Union in a number of respects. Thus (1) it unilaterally placed into effect an employee classification system, a wage rate range, a general wage increase and merit increase system; (2) it negotiated with the Union in bad faith with no intention of entering into any final or binding agreement; (3) it refused the Union's request for informa- tion; and (4) in informed employees that the presence of the Union in its plant had not and would not affect its wage policies in any way. 2. Analysis and concluding findings The findings I have made above, summarizing as they do the credited testimony of General Counsel's principal witness, Williams, simply do not support any of the allegations pertinent to the bargaining relations of the parties. What this testimony and the findings based upon it do support, however, is that the parties bargained, made offers and counteroffers, and in every respect satisfied the established criteria of bargaining deportment. I would accordingly reject any suggestion that the classification system and wage increases were unilaterally placed into effect by the Company. On the contrary they were submitted as proposals to the Union, just as the Union submitted its counterproposals to company representatives. What is apparent is that the Union was more interested in maintaining its prestige with its employee-members than it was in accepting the wage increase that was then being offered. Indeed Union Representative Williams testified precisely to this, stating "I asked him (McGhee) not to put in any wage increases that were not required under the Law" (supra, section IV, A). And Williams testified further that he understood this general increase that had been granted without his assent, "was subject to continuing bar- gaining." Thus, although no impasse had been reached that would otherwise justify the granting of the increase, nevertheless all parties understood further wage bargaining would follow. It cannot be contended, therefore, particularly in view of the foregoing, that the Company bargained with no intention of entering into a final or binding contract. Indeed, a binding contract had just expired upon the initiative of the Union (supra, section IV, A, 111), and it was the Company that proposed, not only the new classification in wage scales, but a complete contract proposal as well and had expressed its willingness, admitted by the Union, to bargain further on wages beyond the newly established rates. As to the alleged failure to supply specific documents and information, it is clear that quite apart from Williams' admission that he was told that there were no such documents, there is no independent proof in the record that such documents and information ever did exist in the form requested by the Union or in any other form, with certain exceptions known to everyone. What admittedly did exist was a 3-page explanation of Job Evaluation and Category System and 34 pages of materials giving a detailed listing, with classification, pay, and date of hire, of every employee of the Company, subdivided by job category. These were given to the Union even before they were asked for and would appear to duplicate the Union's request- "a complete list of existing jobs, including the duties and responsibilities required in their performance." It is true that the documents presented did not outline "duties and responsibilities," as asked for, but this request, like the remainder, has not shown to have existed in any form. Under such circumstances the Company's assertion at the time that they did not exist necessarily disposes of the matter. And finally as to McGhee's statement that the Union's presence in the plant would not determine the Company's wage policy I could find, under certain cir- cumstances, I am sure, that this constituted an element of employee interference, restraint, and coercion. But here the whole pattern of labor relations between the parties belies the significance that the complaint would place on McGhee's isolated remark. An employer is not required to cherish a union or look with gleeful satisfaction upon the organization of his employees. Indeed the Respondent did just the con- trary here when it availed itself of the orderly processes of the Board and obtained an RM election (supra, section IV, A). All that is required of an employer is that 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he conduct himself within the bounds set by Sections 7 and 8 of the Act. This I find it had done and I accordingly attach no unlawful significance to McGhee's expressed dislike for unions. As to his further observation that the presence of the Union neither had nor would have any effect upon the Company's wage policies it occurs to me that this is the sort of "puffing" traditionally permitted a Union when, for example, it makes misleading representations to support either its bargaining demands, or in the first instance, its efforts to win an election.' Contrarily indeed, the history of the labor relations here discloses that a wage policy agreeable to the Union, as well as the Company, had already existed in the preceding contract, and on this latest occasion McGhee, for all of the hostility sought to be attributed to him, first sought union approval for the new plan he proposed. Under such circumstances I am not impressed with the gravity of this single remark. In any event, were Respondent found to have unlawfully refused to bargain an order requiring it to do so would be superfluous and meaningless. The evidence supplied by General Counsel is undisputed that it has agreed to bargain further, particularly on wages. And certainly it could not be recommended that the wage benefits already accruing to the employees be taken away from them. On the con- trary, therefore, I would conclude and find that the record is entirely devoid of evidence that would suggest that Respondent has not bargained in good faith, and I would recommend that so much of the complaint alleging an unlawful refusal to bargain be dismissed. B. The discharge of Charles Campbell 1. The notice Since on or about 1954,2 it is stipulated, Respondent had in effect in its Sumter plant a rule, posted on the employee bulletin boards, reading as follows: Distribution of literature: Good housekeeping on the premises contributes to safe working conditions and quality work. In order to maintain good house- keeping, the distribution on the premises by anyone of any literature, pam- phlets, or handbills will not be permitted except as made by Korn Industries in aid of its operations. Its purpose, according to Plant Superintendent Ragan and Plant Manager R. C. Johnson, both of whom I credit, is to minimize fire hazards inherent in the manu- facture of furniture. In this respect, according to Johnson's undisputed testimony, there have been several disastrous fires in the plant, all in the past 25 years, and one minor fire in the shipping area as recently as 3 or 4 weeks prior to the hearing.3 2. The Union's dissemination of information For as long as the Union has been the employees' certified bargaining represent- ative, since 1963, there has been a bulletin board available to it for its exclusive use. This is located in the vicinity of the entrance to the employee lunchroom 4 The board has been maintained at this location pursuant to the following provi- sion of the most recent agreement between the Company and Union: The Company shall erect a bulletin board in the hallway near the time clocks for the exclusive use of the Union, provided however, that all notices so posted will be signed by an officer of either the local or international union. 1 See for example N L R B v Jas. H. Matthews and Company, 342 F.2d 129, 130 (C.A. 8), enfg. 145 NLRB 1680. 2 The credited testimony of Plant Manager Johnson. 3I do not credit the testimony of J. W. Berry, a former employee called by the General Counsel to rebut testimony that the quoted rule had been posted on the bulletin board during the period specified above. Berry first stated that no rule was posted prior to 1963, then equivocated by discussing the posting of an employee handbook, a subject on which he was not questioned, and finally changing his original testimony to state simply that he could not recall a rule being posted. This equivocation, supplemented by my observation of the witness, persuades me that his testimony cannot be relied upon and I do not do so. * There is evidence that for a period of a week during the summer of 1965 when the lunchroom was being renovated the union bulletin board was obscured by 'a vending machine temporarily located in front of it. No suggestion has been made by any of the parties that this temporary situation bears any significance to the issues present here and I would find and conclude accordingly. KORN INDUSTRIES, INC. 885 In addition to the foregoing mode of communication it also appears that despite the existence of the company rule quoted above prohibiting the distribution of literature on plant property the enforcement of the rule was limited to the plant buildings proper. Thus it is undisputed that the Union, during its organizing cam- paign several years previously, distributed literature in the parking lots and no effort was made to enforce the restrictions in that particular area .5 3. The discharge of Charles W. Campbell Charles W. Campbell was first employed by the Company in December 1955 and has worked a total of 5 years since then; the last period of employment beginning March 1964. He was a member of the Union and served on its negotiat- ing committee which met with the company representatives beginning on June 30, 1965 (supra, section IV, A). In late August 1965, Plant Superintendent Ragan first observed Campbell dis- tributing union literature at the plant door. He was told of the rule prohibiting such activity and orally warned not to do it again. On September 17, 1965, Campbell was again observed as he stood partially in the entrance door of the factory and partially on the outside, distributing union pamphlets, as before. Ragan asked him to come to his office, but Campbell refused to do so for another 10 minutes. When Campbell finally reported to Ragan's office the rule respecting distribution of literature was again read and explained to him and this time he was given a written "Disciplinary Warning" which he acknowledged by signing.6 The warning stated that it was for "Distribution of Literature" and under the section providing for remarks, stated: Employee has been warned verbally about distribution of literature on a previous occasion. Thereafter on October 13, Campbell was again observed distributing union literature, standing in the same position at the plant entrance, a portion of his body in the doorway itself. Ragan again asked Campbell to come to the office and Campbell, after first refusing, reported as requested. He was again told not to distribute the literature, and also told that if he did it another time Ragan would have to fire him. Campbell replied that he "would probably have an opportunity- to do that." Ragan then gave Campbell a second "Disciplinary Warning" which Campbell this time refused to sign. The warning, stating that it was for "Distribu- tion of Literature," also stated: - You have been previously advised of the company rule against distribution of literature or leaflets on company property. You have been asked to do this and your business agent, Dean Culver, has been consulted about this. You have the use of a bulletin board which can be seen by all employees. Mr. Culver told us he would see to it that it did not happen again. You have since distributed literature in violation of company rule on two occasions. This is to advise you that if you violate this rule again you will be discharged. Finally on October 21, Ragan observed Campbell passing out union literature for which he was immediately discharged.? S The credited testimony of Plant Superintendent Ragan, who likewise testified that this exception to the rule, as it related to the parking areas was granted only to the Union and not to others, such as political candidates and supermarkets. Former employee Camp- bell testified that he had never seen union literature distributed on the parking lot. Quite apart from my evaluation of his testimony generally (anfra, footnote 7) his failure to have seen such distribution does not preclude the possibility that distribution occurred when he was not in the lot to see it, or indeed when he was not in the Company's employ. °The facts herein are based upon the credited testimony of Ragan. Campbell was ques- tioned concerning these incidents only in a context of whether or not he was told of the reason for the rule, to which he stated he was not. I, accordingly, deem the oral as well as the stipulated written warnings to have been undenied , without reference to whether or not an explanation of the rules was given to Campbell on any of these occasions 7 The evidence upon which the foregoing findings are based is the stipulated materials in the record concerning the several warnings given Campbell, and Plant Superintendent Ragan's credited testimony. Upon my observation of Campbell at the hearing I am not disposed to accept his testimony as credible. Furthermore, I reject as contrary to his signed acknowledgment of the warning notices and the matter contained therein, his testimony that he was not requested to refrain from distributing literature and that the reason for the rule was not explained to him. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Analysis and conclusions It is General Counsel's contention that Campbell's discharge was for violating an unlawful no-distribution rule and therefore a discrimination in violation of the Act. Accordingly, it would be logical to consider first the nature of the rule itself before continuing on to a consideration of Campbell's deliberate insubordination. It is well settled, of course, that a rule prohibiting the distribution of union literature on company premises during nonworking hours is presumptively an "unreasonable impediment to self-organization" and therefore presumptively invalid unless it can be established that such restrictive action on an employer's part is justified by reason of production or discipline 8 It is to be noted, of course, that the rule in this case is not one restricting merely union literature but, as credibly stated, all literature. Nevertheless, as union literature is included in the proscription and was, as shown (supra, section B, 3) the basis bf its enforcement, it would follow that the terms of the above-quoted rule of law are applicable here, and that absent justification, such promulgation' and maintenance of the rule would be unlawful. On the basis of the evidence presented and the facts found, I am persuaded that there are special circumstances present here that made the rule essential to the orderly maintenance of production and discipline at a plant whose inherent function, furniture manufacture, requires strict safety precautions. At the outset I would note a circumstance perhaps so controlling as would make further justification unnecessary. This is not a case where, as described in Walton (126 NLRB at 697) the employees were not represented by a bona fide labor organization, or as in other situations involving similar rules where a union organization campaign was then in progress as the rule was being either promul- gated or enforced.9 Here the rule in question was first promulgated in 1954, 9 years before the Union's certification as the employees' representative; it was being enforced during those periods while the Union was certified and then recertified as the result of a subsequent Board-conducted election (supra, section IV, A) and while engaged in the negotiation of a second collective agreement. Thus any sug- gestion that antiunion motivation was the basis of the existence for the rule or for its enforcement is clearly rebutted by the chronology detailed above, and by the complete absence of any evidence of such motivation, excepting only Attorney McGhee's isolated remark uncomplimentary to unions which I have previously deemed not of sufficient import to consider (supra, section A, 3). Indeed, it may well be argued that the enforcement of the rule against Campbell appears to have been approved at the time by the Union's Business Agent Dean Culver (supra) as disclosed by the undisputed reference to this fact on the warning notice itself Furthermore, and perhaps by way of afterthought, this rule might well be viewed by the Union as a blessing in disguise. Thus, the Union, now firmly established by two top-heavy elections as the employees' representative has not only enjoyed ample exclusive bulletin board facilities and been permitted a distribution privilege in the parking lot which no other organization enjoyed, but in addition it has the assurance, by the Company's enforcement of such a rule, that competitive litera- ture will be held to a minimum.10 Under such circumstances the Union can hardly be heard to complain that such a rule is an impediment or that its enforcement constitutes discrimination. Assuming, contrary to my understanding of the state of the law, that such a rule as we have here is still presumptively invalid although not motivated by anti- union considerations, the circumstances supplied by Respondent satisfy me that it is justified. Thus it is claimed that the prevention of fires in a furniture manufac- turing operation is of primary importance in the establishment and enforcement of the rule. If I am to accept as a valid general proposition the fire prevention cam- paign propaganda widely published throughout all industry which places a pre- mium upon eliminating trash, how can I conclude that within the confines of this employer's plant a rule directed to eliminating circulars, etc., as potential items of trash, has nothing to do with fire prevention? Moreover, General Counsel cites the fact that but for a minor fire immediately before the hearing there have been no 8 Walton Manufacturing Company, 126 NLRB 697. 9 See for example: Ward Manufacturing, Inc, 152 NLRB 1270; The Wm H B1ocl, Com- pany, 150 NLRB 341; Stoddard-Quirk Mfg. Co., 138 NLRB 615, 636. 10 Compare: Armco Employees Independent Federation, Inc. (Armco Steel Corporation), 155 NLRB 551. FARMERS CO-OPERATIVE GIN ASSN. 887 major fires at the plant since 1952. This, he suggests, and the fact that it has never been shown that earlier fires were caused by paper trash, removes any logical connection between the rule and the fires. On the contrary, just as establishing an adequate sprinkler system might explain a building's fire-free record, so here it is quite reasonable to assume, and I do, that the establishment of a rule to eliminate potential paper trash might logically explain the absence of fires since the rule was imposed in 1954. Directing ourselves to the enforcement of this rule, the circumstances of Camp- bell's several encounters with Plant Superintendent Ragan respecting it disclose a brand of insolence not normally tolerated in an employer-employee relationship, and sufficiently grievous to justify discharge under usual circumstances. To be sure, Section 8(a)(1) and (3) of the Act was designed to protect employees who would engage in concerted activity or join a labor organization. I know of no authority, however, for the proposition that these sections were similarly designed to insulate obstreperous employees from normal discipline. As I have found that the rule to which Campbell's insolence is related is one that was amply justified as a safety measure and in no way motivated by union considera- tions I would conclude and find that Campbell's discharge was for cause and in no way related to his union membership or activity." I would accordingly recom- mend that so much of the complaint as alleges this to be a violation of Sec- tion 8(a)(3) of the Act be dismissed. RECOMMENDATION It is recommended that the complaint in this proceeding be dismissed in its entirety. 11 Aerodecv, Inc., 149 NLRB 192. Farmers Co-Operative Gin Association and Dallas General Drivers, Warehousemen and Helpers , Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 16-CA-2487 and 25.53. November 10, 1966 DECISION AND ORDER On June 17, 1966, Trial Examiner Ramey Donovan issued his Deci- sion 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 Deci- sion. Thereafter, exceptions to the Trial Examiner 's Decision and supporting briefs were filed by the Respondent and the Charging Party. Pursuant to the provisions of 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 [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 161 NLRB No. 86.