Daniel Construction Co.

DANIEL CONSTRUCTION COMPANY Daniel Construction Company, a Division of Daniel International Corporation and Carpenters Local Union No. 1212 affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 17-CA-7612 May 18, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MLURPHY, AND TRUEIS[DAII. On February 1, 1978, Administrative Law Judge John C. Miller issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Daniel Construction Company, a Division of Daniel International Corpo- ration, Greensboro, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. | The General Counsel has excepted to certain credihility findings made bh the Administrative Law Judge It is the Board's established policy not to overrule an Administratise Law Judge's resolutions with respect to credibli- t' unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr I'all/ Products. hrc . 91 NLRB 544 (1950., enfd. 188 F.2d 362 I( A. 3. 1951). We haze carefull, examined the record and find no basis for reversing his findings 2Members Truesdale and Murph 5: agree with the A\dministrrait.e Ia;w Judge that Respondent's rule against distribution of literature and unau- thorized solicitation "during working hours" is unduls restrlcti;e of the em- ployees' Sec 7 rights and therefore violates Sec. N8a)! Il of the Act In reach- ing this conclusion. they do not express an opinion w ith respect to the other holding of Essex International. Inc, 211 NLRB 749 (1974), namely, whether a rule prohibiting solicitation and distribution "during working limne' is presumptively valid DECISION STATEMENT OF THE CASE JOHN C MILLER. Administrative Law Judge: This case was heard in Coffeyville. Kansas. on August 23, 1977. on a complaint issued on June 7, 1977, alleging that Respondent maintained and enforced an invalid no-solicitation rule at its construction project in Coffeyville. Kansas, in violation of Section 8(a)( 1) of the Act. It is further alleged that Re- spondent discriminatorily laid off 13 employees on April 1. 1977. because of the employees membership in. support for. or activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. Upon the entire record in this case, including my obser- vation of the witnesses and their demeanor, I make the following findings: FIs)IN'Ss IOF FACT I JURISDI( TION The Respondent. Daniel Construction Company, a Di- vision of Daniel International Corporation, a corporation with regional offices in Greensboro. North Carolina. is en- gaged, as a general contractor, in the building and con- struction industry throughout the United States, including the construction of a facility for Western Publishing Com- pany in Coffeyville. Kansas. In the preceding calendar sear, Respondent purchased materials valued in excess of $50,000 directly' from suppliers located outside the State of Kansas. The complaint alleges. Respondent admits, and I find that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Carpenters Local Union No. 1212. affiliated with United Brotherhood of Carpenters and Joiners of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. II THE LNf AIR LABOR PRA( TICES A. Background Facts Respondent began work on a construction project, at Coffeyville. Kansas, building an office and warehouse for Western Publishing Company. Grading work began on the project in December 1976h. and hiring of certain craft em- ployees began in January 1977. By February 1977, a crew consisting of carpenters, laborers, and ironworkers were working on the foundation with work primarily consisting of excavation, tieing of steel, making fittings for and pour- ing of concrete for piers and interior and exterior footings for the building. Joint Exhibit I shows a diagram of the building and the proposed six sequences to be followed in the initial construction of the building beginning with sec- tion marked D I and ending with section marked D6. On or about March 15. 1977. Art Keim, hired as a iron- worker foreman, became dissatisfied not only at his own salary scale but at the fact that the laborers were being 236 NLRB No. 27 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid a little more than half the union scale for laborers whereas carpenters on the job were getting essentially the union scale for carpenters, somewhere around $7.35 an hour. Keim contacted Eastland, union business representa- tive for the Carpenters Union and secured union authori- zation cards and held a meeting at his home on March 15, attended by some 8 to 10 employees. At least six employees signed authorization cards at that timne. On or about March 17, 1977, Stice, the carpentry foreman, agreed to distribute union authorization cards and did so in a Wal-Mart shop- ping center parking lot after employees were notified of a meeting there right after work. Stice credibly testified that he secured approximately seven or eight cards which he turned over to Eastland, the union business representative. According to Eastland's testimony, which I also credit, he secured 16 signed authorization cards from the craft hourly work force on the Daniels project.' Eastland estimated the work force at approximately 25 people, Michael Dean, Re- spondent's timekeeper, confirmed that with the layoff of five people on March 31, 1977, the work force totaled ap- proximatley 25. On Saturday.', March 26. Keim was advised by Eastland by telephone that the Union would notify Daniels that they represented the employees and wished to bargain. On March 31, four carpenters were laid off along with Keim, the ironworker foreman. According to Isom, Respondent's general superintendent, this layoff was prompted by a "hold" put on construction of the west wall of "M" area by its client, Western Publishing. These layoffs are not alleged to be discriminatory. The Company received a demand for recognition and a request for bargaining by certified mail in Greensboro. North Carolina, on April I, 1977. It was on the same day, April 1, 1977, that the Company laid off the remainder of its hourly work force consisting of carpenters, laborers, and possibly an operating engineer. The General Counsel con- tends, inter alia, that the very timing of the layoff supports the conclusion that Respondent had a discriminatory mo- tive. In defense, Respondent contends inter alia, that the layoffs were economic in nature, prompted in large part by its client's consideration of a possible expansion in the con- struction plans, i.e., the adding of an additional bay in the warehouse area designated as "M" on Joint Exhibit 1, as well as other hold orders in other areas of construction and the fact that construction was ahead of schedule. Respon- dent claims that the timing of the layoff was mere coinci- dence and that the layoffs were decided at mid-morning of April 1, approximately at I I a.m., prior to receipt of the recognition demand which occurred at approximately I to 1:30 p.m., on the same day. Thus, the gist of this portion of the case is whether the demand for recognition prompted the immediate discriminatory layoff of 13 employees or whether under all circumstances, the layoffs were economi- cally motivated and were merely coincidental to and im- mediately prior to the demand for recognition. i For purposes of this decision, laborers are included as part of the craft work force. Alleged Invalid No-Solicitation Rule The General Counsel alleged that Respondent at all times material herein, did maintain and enforce against its employees an invalid no-solicitation rule at the project. In support of such allegation, testimony was adduced from several employees that they were given a handbook (G.C. Exh. 4) setting forth company rules and were told to read it. Page 7 of the handbook states the following prohibition under the heading of "Solicitation and Distribution of Lit- erature." It states in pertinent part that "distribution of literature and unauthorized solicitations are prohibited during working hours." In cross-examination, however, all the employees ques- tioned admitted that they were not told or warned about any solicitation rule and if there was one, they weren't aware of it. Apart from the printed rule in the handbook, the only testimony adduced in support of such allegation was that by Stice, who first testified that he was not aware of any no-solicitation or no-distribution rule on this job but then followed that by noting that Charlie Isom, project superintendent, had said he did not want union representa- tives out in the field talking to employees. B. The Alleged Discriminatory Lavoffs of April 1, 1977 In deciding this issue, it is necessary to examine the work status of the project at the time of the layoffs; the Respondent's economic claims, inter alia, that a possible change in construction plans was a major factor in prompt- ing a "hold" order of further construction along with other "hold" orders; the nondiscriminatory layoffs on March 31, 1977; evidence of Company's knowledge as to the union activities of its foremen and employees; and lastly, any evidences of union animus by Respondent. 1. Status of the project With respect to the excavation and foundation work remaining at the time of the layoffs on April 1, 1977, testi- mony varied. Ironworker foreman Keim estimated that the project was approximately three-quarters to four-fifths completed at the time of the layoff. He estimated that 2-'/2 to 3 weeks of work remained involving the crafts involved herein: namely, the carpenters, laborers, and operating en- gineer. Carpenter foreman Stice testified that approximate- ly 2 weeks work remained. In contrast to that, Cashwell company vice president in charge of the Coffeyville project testified that Isom, project superintendent, indicated on April 1, 1977, during a discussion about the shutdown of the project, that a few days work remained. Stice appeared to have a good recollection of the work remaining and ex- plicitly recounted areas of such work. While I find it un- necessary to pinpoint exactly the amount of work remain- ing as the witnesses views represented estimates, I find Stice's testimony more explicit and believable and con- clude that approximately 2 weeks of work remained at the time of the layoff. 194 DANIEL CONSTRUCTION COMPANY 2. Respondent's claim of an economic layoff Cashwell, Respondent's vice president in charge of the Coffeyville project, credibly testified that he advised Isom on April I to lay off the entire crew because (a) the project was ahead of schedule; (b) the "hold" orders on construc- tion in certain areas reduced the amount of available work to a few days or at best a week's work; (c) the leveler pits were changed; (d) the construction contract evolved into a "hard" money contract, i.e., cost overruns would have to be borne by Respondent if costs were excessive. As to (a), Cashwell testified that the project had been ahead of schedule for sometime and that 75 percent of the exterior walls had been completed and 90 percent of the interior walls. Cashwell also stated that he studied the pur- chasing and they had not bought the structural steel for the office, the roof nailers, the mechanical system nor the doors and that it would take some 4 to 6 weeks to get these items started. He did state that they awarded the mechani- cal contract and had them on the job in 2 weeks. In addi- tion, they had selected the Rite-Hite dock leveler repre- senting a change from the original plans at the March 28 meeting with Western and were not sure the foundation would be proper for the new dock leveler. As to (b), he enumerated a number of "hold" areas: i.e.. areas or construction that were halted pending a go-ahead by engineering or by the client. Western Publishing. On March 30, Patrick Welch. director of engineering, had re- quested a "hold" order on the west wall of the "M" area pending a decision by the chairman of Western's board whether to put an additional "bay" in the manufacturing area. Isom testified that he too received a call on March 30 from Welch requesting a hold on the West wall and that, as a result, laid off four carpenters and the ironworker fore- man, Keim. Cashwell credibly testified that as a result of the review of the project with Isom over the telephone on April 1, 1977, he concluded that the work remaining, ap- proximately 480 feet of foundation. would take a few days to a week and it was an appropriate point to layoff the men. As to (c), he advised Isom on April 1 that the Rite-Hite dock leveler had been selected and that further work on the foundation in those areas should be suspended. Respon- dent's Exhibit 3 indicates a subcontract dated March 31, 1977, was made to Rite-Hite Corporation. At the March 28, 1977, meeting in Racine, Wisconsin, Western's repre- sentatives had approved the switch to Rite-Hite dock level- ers at a saving of $19.000. As to (d), Cashwell's testimony is not disputed that Re- spondent, on April 5, 1977, sent a guaranteed maximum job estimate which guaranteed that the maximum cost of the building would not exceed a certain sum. (See Resp. Exh. 2.) Accordingly, it appears that Cashwell's statement that cost overruns above that guaranteed estimate would be borne by Respondent are correct and that labor costs were an integral part of such costs. In support of this "economic layoff" contention, it is noted that Stice testified that 2 or 3 weeks before the lay- offs, Isom had told him that the)' would have to cutback on carpenters shortly and that probably one-half of the ex- isting work force would be kept on. Isom also testified that Cashwell. in discussions prior to March 28, had urged him to cut down on the work force hut because of bad weather he prevailed on Cashwell to maintain the work force and complete more of the foundation. The first layoff occurred on March 31. when four carpenters selected by Stice on the basis of seniority were laid off along with Keim. the iron- worker foreman. 3. The nondiscriminatory layoffs of March 31, 1977 At the beginning of the hearing, counsel for the General Counsel moved to strike from paragraph 6(a) of the com- plaint the names of five employees 2 on the grounds that since such individuals had been laid off on March 31, 1977, before any company knowledge of union activity among the employees could be proved. evidentiary proof of a dis- criminatorily motivated layoff as to them was lacking. Re- spondent had no objections and I granted the motion. In addition, Stice credibly testified that Yoder. the special as- sistant to Isom, project superintendent, informed him on March 29, 1977. that work was ahead of schedule and that a lay off of four or five men was probable and told him they would discuss it further the next day. The following day. March 30. 1977, 3 Stice had a further conversation with both Isom and Yoder and he was told to select four men for la)off and to prepare their termination slips by noon. At that same conversation. Stice was asked if the carpen- ters could put in the remainder of the steel in the founda- tion and he responded yes. that he thought they could. At that time Isom said he was thinking about laying off Keim, the ironworker foreman, whose principal job was supervis- ing the laying of steel for the foundation. Stice responded that whether to lay off Keim was up to Isom. The above recital does establish that the initial phases of the project being handled directly by Respondent were winding down and that the carpentry crew on the site was reduced to half its former size. Conversely, the mere fact that the March 31 layoff was econoftiicall1 motivated is not necessarily dispositive of whether the layoff of the en- tire hourly work crew on April I was also lawfully motivat- ed. 4. Company knowledge of union activities Cashwell credibly testified that he was not aware of any union activities until he received the letter requesting rec- ognition and bargaining on the afternoon of April 1, 1977. He and Isom denied discussing the union at anytime prior to the layoffs of April 1, 1977. Keim, the ironworker foreman, and Stice. the carpentry foreman, both of whom had been active in organizing the employees, are supervisors within the meaning of the Act. Neither notified Isom or other company officials that union organizing was underway and all organizational ac- Art Kelm. Boirorer. harold (Countrxman. James McPherson. and w'il- ham I homas As the record elsewher establihshes that Ihe four carpenters and Keim were laid off on .Malrch i. 1977I [(conclude that Stice is Incorrect in refer- ring to the laoff as if 5Mairch )0. and that in fact his con.ersatlons were on March i() and 31 195 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivities were conducted in meetings away from the jobsite. The General Counsel does not contend that knowledge of union activities by Keim and Stice should be attributed to the Respondent by virtue of their supervisory status. pre- sumably because they' were actively engaged in the orga- nizing and because such knowledge was not in fact com- municated to other company officials: namely. Isom, or Yoder, the assistant superintendent on the job. Isom testified to one incident about receiving an anony- mous phone call Wednesday afternoon (March 30), where an individual stated some of the people are signing cards at a grocery store. When Isom asked what kind of cards, the individual said he did not know and when he asked who it was, the individual hung up. Isom said he took no further action because he does not pay attention to anonvymous phone calls. Dennis Countryman, a carpenter employee of Daniels. testified that in the meeting at 4:30 p.m.. the day of the layoff, April I. Isom stated that the layoff was necessary because of a change in plans and didn't have anything to do with the 1Union. Isom explicitly denied any comment about the Union at the time of the layoff and I credit his denial based on his demeanor. His denial is buttressed bhv the fact that none of the other employees who were present at the layoff meeting testified about any reference to a union at the time of the latyoff. 5. Evidence of union animus by Respondent Eastland. secretary-treasurer of the Carpenters Union credibly testified that he wrote (Cashwell in September 1976. about manpower requirements, after learning that the construction contract in Coffeyville was awarded to Daniels Construction Company, but received no response. Cashwell was not asked if he had received such a letter and his testimony does not contradict or explicitly denis Eastland's testimony oin this point. Stice testified that, when interviewed by Isom for the job as carpentry' foreman, he indicated he was a union man and expected to receive the union rate for carpentry fore- man. He was hired the following Monday and the Compa- ny indicated it was willing to pay $7.35. the going union scale for carpenters in the area. In that conversation Stice stated that Isom replied that it didn't matter whether or not he was a union man and that the Company would pay him the union scale. Both Keim and Stice, who had been active in organizing the employees, were foremen and supervisors within the meaning of the Act. Neither notified Isom nor other com- pany officials that union organizing was underway and all organizational activities were conducted in three meetings away from the jobsite. Isom credibly testified that, with reference to the anonis- mous phone call about signing cards, he took no steps at all because it was anonynious and he "had heard nothing about the union and I didn't pay any ,attention to it." lie further testified that he did not talk about the Union on the job prior to the layoffs. When asked why Stice was not called back, Isom did state. however. that he was told hb counsel not to call supervision back "but to notify them I was going back to work but not to call them back." C. Factors Tending To Establish a Discriminatory) Layoff 1. The decision to lay off all employees at Coffeyville was made on April 1, 1977, the same dav as the demand for recognition and such decision was made by Cashwell at his office in Greensboro, North Carolina, where the Union demand for recognition was made. 2. The envelope which contained the Union demand for recognition has a stamped notation by the post office that first notice as to the certified mail and/or postage due mail was given on March 31. 1977. Thus the Respondent should have had notice of such mail as of the first mail pickup on the morning of April 1, 1977.4 3. Respondent made no response to the letter demand- ing recognition. 4. Cashwell stated that he conferred by telephone with Isom at I I a.m. (his time) on April I, and Isom stated that such conversation ran almost an hour at the conclusion of which Cashwell advised Isom that the remaining employ- ees should be laid off. 5. All of the employees were laid off rather than a grad- ual reduction in force. 6. Approximately 2 weeks work remained to be com- pleted by these employees at the time of the layoff. 7. Isom testified that he received an anonymous phone call on March 30, 1977, informing him that the employees were signing "cards." 8. Layoff of five men on March 31. 1977. was prompted bv the hold order on the west wall of "M" area which was communicated to Isom by Welch on March 30. Thus, this factor alone does not give a basis for the additional layoff of April 1, 1977. 9. Slowness in resuming the project even though Cash- well received a release on the "hold" order on the west wall of "M" area on April 8. Isom testified that Cashwell never notified him about the release and that he learned about it from Western's job representative about mid-April. D. Factors Tending To Establish That No Discriminatory Layoff Has Occurred 1. The foundation work at issue here was nearing com- pletion. 2. The five individuals laid off on March 31. 1977. are not alleged as discriminatory discharges. 3. There is no clear proof that the Company had re- ceived the Union recognition prior to implementing its lay- off of April 1, 1977. 4. The number of "holds" on construction reduced the amount of work available. 5. Work was ahead of schedule and a number of sub- contracts were in the process of being awarded. 6. Employees laid off on April 1 were told they would be recalled as work became available and offers of employ- thls iteni a:is noi r.aic'd it the hearinC noir h , iliehr couinsel In their bricks 'hile it hestaishi minind that a notice of such letter was puli in Re',pwicdeni', hbox on Mar\1rh 31. 1077. it st-ll does niot conclusiveI proec that Rclespdcicni had actuall pickcd up such lellcr il Ithe morning rnii plckill is contrai;std to tthe aIftIerilo n Illil pickup. ( asih;eill. hol did noi -ick Lip thle illil. teltified Illat he did not see the elicl demaniiid for recc inl- i iiiii .tll ltse lunch. in l aIpprolsiliatelR I to I 311 in Ih[c aferiloon I Lite his mrnpl, as a fa.ttlr toa he considered. 196 DANIEL CONSTRUCTION COMPANY ment were made to laid-off employees between April 29 and May 9 and were made before the Union filed charges on May 23, 1977. alleging the layoffs to he discriminatory. 7. Apart from the layoffs, Respondent engaged in no conduct evidencing union animus. Discussion A review of all the previously cited facts discloses a very close case as to whether a preponderance of evidence exists for finding a violation with respect to the alleged discrimi- nator) ' layoffs on April 1. The key question, whether Re- spondent has received the Union's request for recognition prior to making the decision to layoff on April 1, is not established by a preponderance of the evidence, although the timing in itself, is highly suspicious. Nonetheless. I would have to infer a key fact, that Respondent had in fact received the request at the time of the decision to lay off which, under the circumstances, I am reluctant to do. For the reasons enumerated hereinafter. I conclude that the layoffs on April 1,. 1977. were economically motivated and not in violation of the Act. In so concluding I note the dearth of evidence of company knowledge about the union organizational activities. The principal union organizers Keim and Sikes. the ironworker foreman and carpentry foreman, respectively, had both conducted their organiza- tional activities off of the jobsite and neither informed any other management representatives of their activities. Stice testified that he was careful not to distribute cards on the jobsite. Moreover. it is clear that the decision to lak off all the hourly employees was made bh Cashwsell. who was lo- cated at Greensboro, North Carolina. For an economic standpoint, even Keim, who was laid off in an economic reduction in force on March 31. stated that the foundation work was close to being four-fifths completed. It is also undisputed that certain construction "holds" were in effect because of the client's request or because of lack of engineering approvals prompted it part by such changes as the selection of the Rite-Hlite dock le- veler, a change made at the march 28 meeting attended hy Cashwell and Western Publishing representatives. I have accepted and credited Stice's testinmony that approximatelx 2 weeks of work remained, because of his famnilarit s with the work and because of his accurate recollection. Thus, in a real sense, the fountlation \worsk as nearing completion and a reduction in force wx-as necessaril min the offing. Nor can it be overlooked that a number of key subcontrac ts were set to be performed. For example. the erection of steel by a subcontractor occurred in early April after the layoffs here involved. and a number of subcontracts were awarded in late March and earl) April. In mn view. these are substantial economic reasons justifying the layoff at that time. While one max question w hether the laxoffs were premature in view of the 2 weeks of work remnlrngle. this falls within the area of reasonable mnanageriil juli- ment that I am not prepared to second guess . absent clear evidence of discriminatory motivation. As to the evidence of union animius. apart from Respon- dent's failure to recall Stice ' the record conta:ins no cvi- i [11 ll cltie ic1;1I hi e .i iftold }h c mielre\ l suot I ito c.I] superTlsma n blick hSli to )loqlf, t!rCll fie (,I,) ',Inn , t ll hb.lk ., :,ork dence of threats, surveillance, or promise of benefit involv- ing the union activity' of the foreman or the employees. Moreover, all the alleged discriminatees were given offers of re-employment beginning in late April. Even more im- portant, the recall offers were made prior to the charges being filed alleging that the April 1 layoffs were discrimi- natorv. Under all the circumstances, I am not persuaded that the General Counsel has sustained his burden of proving that the layoffs of April I. 1977. were discriminatorily motivat- ed in light of the countervailing economic justification for such laxyoffs. the lack of company knowledge as to union activity, the absence of union animus, and the Company's attempt to recall all laid-off employees. Accordingly, I will recommend that this allegation be dismissed. The Alleged Illegal No-Solicitation The gist of the alleged violation here is that Respon- dent's rule contained in a handbook given to employees is illegally broad in that it prohibits solicitation during "working hours." In Essex International. Inc.. 211 NLRB 749. 750 (1974). the Board concluded that the term "work- ing hours" could be construed to apply to "clock" time and was therefore unduly broad because it would prohibit so- licitation during breaktime and other nonworking periods. Apart from the fact that the rule was contained in a handbook given employees when hired, the rule was not emphasized in anyway to the employees by management and there was no evidence of it being enforced against employees in anyway on this job. The onlx testimony in the record indicating management s interest in solicitation is that by Stice, car- pentir foremian. that a business agent came on the job once or twice and that "Charley [Isom] said he didn't want him out in the field talking to people. But it is awfully hard to remember conversations that far back." In any event this related to a nonemployee organizer on the job and does not relate to employee solicitation or distribution on work- ing or nonsmorking time. In the final analysis, the violation here, if any. consists of the cxistence or maintenalice of the "illegal" rule in the handbook. There is no evidence of enforcement of such rule. Isom testified that the rule had been changed and that sonie signs Aere sent to him to be put up. However, when questioned about the changes he stated that "as far as the signs are concerned. I believe it is changed a little bit, solic- itation I don't know where the change is." Later when questioned whether the employees' handbook (G.C. Exh. 4) was still in effect at the jobsite, he replied yes, but that a new version was coming out but "it hasn't come to us." -hus. the violation here consists only of the maintenance of an illegal no-solicitation rule in the handbook and that apparentl\ is in the process of being modified by Respon- dent. If the record were clear that the violation, such as it were. had been fullx and properly remedied. I would he inclined to dismiss the allegation as simplx a transitory sio- lation that his heeni fullx remedied. In the absence of clear evidence that the rule has been prioperly modified anri put into effect, a finding of violation appears necessars to a- 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sure the rule is properly modified. If Respondent has in fact properly modified its rule, that compliance with this finding and order will be easily effected. Accordingly, ab- sent evidence that the rule has been properly modified and put into effect, I conclude and find that the existence and maintenance of such a broad no-solicitation rule is viola- tive of Section 8(a)(1) of the Act.6 Upon the foregoing findings of fact and the entire rec- ord, I make the following: CONCLUSIONS OF LAW 1. By maintaining a no-solicitation, no-distribution rule that prohibits employees from soliciting or distributing lit- erature during "working hours," Respondent has engaged in unfair labor practice within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 3. By laying off employees on April 1, 1977, Respondent did not violate Section 8(a)(3) and (I) of the Act. 4. Respondent has not otherwise violated the Act. THE REMEDY The recommended Order will contain the usual cease- and-desist order and affirmatively require that Respondent modify its illegal no-solicitation, no-distribution rule as contained in its handbook distributed at its C'offeyville. Kansas, jobsite in the early part of 1977. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, Daniel Construction ('ompany, a tDi- vision of Daniel International Corporation, Greensboro. North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining an invalid no-solicitation, no-distribu- tion rule in its handbook that may be construed to prohibit employees from utilizing working hours (which may in- clude lunch and break time) for such activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Modify, to the extent it has not already done so. the rule in its handbook to permit solicitation or distribution on nonworking time, provided, however, that any distribu- tion of literature or solicitation may be limited to nonwork areas of the plant or jobsite. (b) Post at its jobsite in Coffeyville, Kansas, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 17. after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Ih Is FURItHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found here- with. Ei r s, " Iirnaliltdial, Inrc- ,upra In the event no exceptilns are filed as prosided b) Sec 102.46 of the Rules nrid Regulations of the Natinal I abor Relations Board. the findings. coniclusions. and recommended Order herein shall. as provided in Sec 1(0248 ot the Rules and Regulations. he adopted by the Board and become its findings. conclut.sions, and Order, and all objections thereto shall be deenied railed for all purposes In the event thai this Order is enforced b, a Judgment of a United St;ltes ( ourt of Appeals, the srrds in the notice reading "Posted by Order of the N.allornl laI hor Relations Bioard" shall read "Posted Pursuant to a Judgmenrt of the It:llted States Court of Appeals Enforcing an Order of the Natinla.il Labhor Rellations Board " APPENDIX NoiTrcE To EMPLOY FES POSTED BY ORDER OF THE NArtosAI LABOR RELATIONS BOARD An Agency of the United States Government WF WILL NOI maintain an invalid no-solicitation. no-distribution rule in our handbook which limits em- ployees' activ ities during rworking hours or "clock time." W'EV AII L UOT in an! like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to form, join or assist a union of their choice, to bargain collectively through a union of their choice or to engage in any other concerted activities for the purpose of collective bargaining or mutual aid or protection. WE WIL.t modify our handbook so that restrictions as to solicitation and distribution with respect to union activities will only apply to working time and not to lunch or break time in nonwork area. DANIEl CONSIRI (lION COMPANY. A DIVISION OF I)ANIEL INIFRNAIIONAI CORPORATION 198