Sunbeam Corp.

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunbeam Corporation and James A. Moore, Jr. Case 13-CA-8117 August 19, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, BROWN, AND JENKINS On May 19, 1969, Trial Examiner Stanley Ohl- baum issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal as to them. Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs, and the Respondent filed an answering brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications. The Trial Examiner found that Respondent did not violate Section 8(a)(3) and (1) of the Act when it discharged James A. Moore because Moore's activity giving rise to discharge was not concerted activity. While we agree with the Trial Examiner that Respondent in this respect did not violate Section 8(a)(3) and (1) of the Act, we base our conclusion on the following considerations. In October 1966 Moore was told there was an opening for him as a leadman in Department 133. On the day scheduled for transfer, he was told there was no opening in that department, but that he could transfer as a leadman to Department 437. After Moore went to Department 437, he learned that a rank-and-file employee working full time as a leadman in Department 133,1 thus indicating there was a leadman position he could have filled. He filed a grievance based on the Employer's failure to transfer him to Department 133. Moore was unsuc- cessful through the second step of the grievance machinery and on February 13, 1967, the Em- ployer gave its final answer denying the grievance. Moore thereupon requested a meeting with Respondent President Gwinn and was told that the grievance procedure set forth in the collective-bar- gaining agreement was the proper method fox resolution of complaints. Union Representative Janas and an official of the Respondent met Moore on March 10, 1967, and told him that Gwinn could not speak to one employee of a working force of 2,400. Although they again discussed Moore's com- plaint, no change in the ruling was made. On Au- gust 11, Moore wrote to Gwinn again. Apparently failing to secure a satisfactory response, Moore then composed the open letter to President Gwinn detailing the nature of his various grievances; he ac- cused the management of displaying a hostile at- titude toward him and harassing him in an effort to force him to quit his job. In this letter Moore, warn- ing that time was of the essence, again demanded a meeting with President Gwinn as the only alterna- tive to his presenting his grievance to his "co-wor- kers and the public [t]o solicit their support for fail and equal settlement . . . ." Moore incorporated this letter in a leaflet or "petition" addressed to "Employees of Sunbeam Corporation and Purchasers of Sunbeam Appliances" in which he made numerous assertions and accusations reflect- ing on the honor, honesty, and intelligence of both company and union officials. The leaflet closed with the following statement and a list of the or- ganizations, officials, and other persons to whom copies were being sent: On October 24, 1967, 1 shall march in protest of the conditions here at Sunbeam Corpora- tion. This will be an all day protest march in front of the company, 5400 West Roosevelt Road, Chicago, Illinois. Around the end of September 1967, Moore had some 3,500 copies of the so-called petition made. On October 2, Moore passed a copy of the "peti- tion" to employee Thomsen and asked her advice with respect to it. The distribution and discussion both occurred on working time. Later Thomsen in- formed Moore that "the front office was in ar uproar over the petition" and that she had beer called to the personnel department where she was questioned about the document and forced to sur- render it. On October 3, 1 hour before his 7:3C a.m. reporting time, Moore began a mass distribu- tion of the "petition" on a public sidewalk outside the plant. About 11 a.m. Moore was instructed tc report to the personnel office at 3:45 p.m. that ' The record evidence establishes this to be the fact and to the extent that the Trial Examiner found otherwise in fn 9 of his Decision , we hereby overrule his finding 184 NLRB No. 117 SUNBEAM CORPORATION same day. When he did so Moore was told that the Company was aware of his "allegations" and had ordered him suspended. According to Moore, the personnel director assured him, "I had his word on it that I was not being discharged and that I was not being fired," and Moore further testified that he as- sumed from this conversation "that it was a suspen- sion while they investigated the allegations." Moore refused to acknowledge the authority of such action until the reason for the suspension and its duration was given him in a written notice . On October 4, he again distributed the leaflet between the same hours to the changing shifts of employees. When he entered the building to report to work a union representative referred him to the personnel office where he was handed the written suspension notice.' The notice stated that Moore had "engaged in conduct ... not becoming a Sunbeam employee" and was suspended indefinitely pending further in- vestigation . After receiving his written notice of suspension , Moore added to his petition a handwrit- ten paragraph stating that, "the Company ter- minated my employment October 4, 1967, without just cause, under the guise of enforcing the Com- pany rules" and he continued distributing the leaflets by hand adjacent to company property. On October 5, the Union filed a grievance on Moore's behalf with respect to Moore's suspension. Union Representative Janas told Moore in effect that a strike in these circumstances would violate the collective-bargaining agreement3 and that he would be taking the matter out of the Union's hands if he picketed and urged employees to boycott Sunbeam products, because the Union did not want to give the impression that it was authoriz- ing a strike in violation of this contract's no-strike clause. On October 11, a second-step grievance meeting was held regarding the suspension. On October 17, Respondent's representative Hosek wrote Janas that Moore's petition was an encouragement to ' Moore read the notice and insisted upon returning it physically to a per- sonnel officer, purportedly because he had not been accorded union representation at the time of the oral suspension or at the time of the presentation of the written document The notice was then delivered to the union representative who had remained in the lobby outside 3 Art 1, par 5 of the collective- bargaining agreement provides 5 In view of the provision for final arbitration of grievances arising under this agreement , the Union and its members, individually and collectively agree that during the term of this Agreement they will not cause, authorize , encourage , permit or take part in any strike , and the Company agrees there shall be no lockout (a) For the purpose of this Section , the term 'strike' includes a sit-down , stay-in , slow-down, walk-out, curtailment of work, stop- page of work , willful refusal to perform assigned work, or any other interference with work or orderly production , or picketing of the Company's plant or premises 951 strike and the Union would be held responsible for the consequences. Janas told inquiring employees that they should not recognize Moore's so-called picket line, since it was not sanctioned by the Union and was in breach of the no-strike clause. On October 17, Moore was discharged effective October 4, the discharge letter stating in part that Moore sought to encourage a strike and product boycott. On October 24, Moore picketed the Respondent's premises. Before this "march" he had told Union Representative Rapacz that other em- ployees should not join the picketing and he also made similar statements directly to two employees. Moore discontinued his protest picketing purpor- tedly to avoid any participation by the second shift employees in the "march." On October 31 a third-step grievance meeting took place on Moore's discharge (the grievance on the suspension having been converted to one on the discharge), and on November 8 the Union in- formed Moore that it was unwilling to take his re- jected grievance to arbitration. Although we disagree with the Trial Examiner's conclusion that Moore's activity was not con- certed,4 we are nevertheless of the opinion that such activity was not protected by the Act.5 The no-strike provision of the contract, quoted, supra, is a broad commitment by employees individually and collectively to utilize the grievance-arbitration provisions of their agreement to resolve employee grievances and not to employ economic pressure to support their position in any disagreement. Specifi- cally included is a commitment "not [to] cause, en- courage ... or take part in any strike," and by the incorporated definition "the term `strike' includes .. . any . . . interference with work or orderly production, or picketing of the company's plant or premises." In the open letter portion of the leaflet, Moore literally threatened within a specified time to present his grievances to his fellow employees. Further, the "petition" addressed to "Employees of (b) It is agreed , however, that the Union will not be held liable for acts beyond its control , and therefore , the Union will be held in violation of this Agreement only for the acts authorized or con- sented to by a Union officer or representative who has authority to call a strike under the Union's constitution or by-laws (c) The Union agrees to cooperate in combating unauthorized strikes and immediately upon notice to an authorized officer or representative, the Union agrees to ask the strikers to return to work ° See Illinois Ruan Transport Corporation , 165 NLRB 227, Walls Manu- facturing Company, Inc , 137 NLRB 1317 ' Moore filed a grievance over the Respondent's failure to transfer him to Department 133 This grievance was disposed of through the grievance procedure when the Respondent gave its final answer on February 13, and there is no showing that Moore was not fairly or adequately represented by the Union in pursuing his grievances The Union also took up Moore's 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunbeam . . ." elsewhere repeatedly appeals for support in Moore 's endeavors . Such an appeal in a document in which the author announces his intent to picket on a specified day at the Company's premises , in our view, would reasonably , if not in- evitably, be read as an instigation to other em- ployees to strike. That fellow employees so in- terpreted the leaflet is apparent from Janas' warn- ing to Moore on October 5 that if Moore was going to picket Janas would have to refuse to process Moore 's grievance further because of the contract no-strike clause , and Janas' additional testimony that even prior to October 5 , shop stewards had asked him if they should recognize a picket line if one was established . Moreover , after these warnings Moore himself deemed it necessary to dis- claim a strike intent and to request other employees not to walk with him on his so-called march. How- ever, the purported disclaimer did not occur until after he was discharged and therefore does not determine whether Moore 's petition in itself en- couraged employees to strike within the contract definition before his discharge . Even viewing the appeal for support as relating only to participation in the consumer boycott , we regard such conduct as in conflict with the basic intent of the no-strike clause inasmuch as it employs economic pressure in support of a grievance contrary to the stated intent that such matters be settled only within the grievance -arbitration procedure to which em- ployees were individually committed .' In these cir- cumstances , we find that Moore 's activity was not protected. Accordingly , we conclude that the Respondent's discharge of Moore did not violate Section 8(a)(3) and (1) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Sunbeam Corporation, cause through the grievance procedure when he was suspended and when the suspension was later changed to discharge, in part for breach of the contract no-strike provision Whether that provision forbids Moore's con- duct is properly a matter for grievance and arbitration , and the parties have resolved this question through the grievance procedure Here again there is no indication of a lack of fair and adequate representation Accordingly, Member Brown would defer to the resolution reached under that procedure without reaching the legal issues considered herein Chicago , Illinois , its officers , agents , successors, and assigns , shall take the action set forth in the Trial Examiner 's Recommended Order, as modified below.' MEMBER JENKINS , concurring in part and dissenting in part: I concur in my colleagues ' conclusion that Moore's distribution of his leaflet was concerted ac- tivity , but unlike my colleagues I would also find that his activity was protected by the Act. I can find no record support for concluding that Moore's "leaflet and other conduct " can be interpreted "as an instigation to other employees to strike" in violation of the no-strike clause. I am unable to determine from the record what "other conduct" the majority is relying on to strip Moore's activity of the protection of the Act. Cer- tainly Moore's picketing on October 24, 1967, can- not be considered "such conduct" for the picketing did not occur until after his suspension on October 4 and his discharge on October 17 pursuant to il- legally broad no-solicitation and petitioning rules. Nor can I believe that the majority is adopting the Trial Examiner's intemperate characterization of Moore 's activity as "calculated irresponsibility in deliberately attempting for purely personal ad- vantage to kindle wholly unwarranted racial pas- sions-action which , considering the neighborhood in which Respondent 's plant is located , was fraught with sinister hazard of escalation of racial disorder" as "other conduct" which removed his activity from the protection of the Act. If so, it would also appear that like the Trial Examiner they would con- clude that Moore's activity was not concerted because it was "slanted to his personal situation." Thus, in my view , in the absence of any reliance on specific conduct the majority's decision must rest solely on their interpretation of the contents of Moore's petition. As the record amply demonstrates , Moore had during his employment attempted on several occa- sions to implement the collective-bargaining agree- ' Unlike our dissenting colleague, moreover , we deem it irrelevant in this proceeding to inquire into the merits of Moore's complaints and grievances , and their disposition under the applicable grievance-arbitration provisions It is not our function to retry such matters which the parties have disposed of in accordance with their binding contract obligation t Arlan 's Department Store of Michigan, Inc , 133 NLRB 802, 808 'In fn. 37 of the Trial Examiner 's Decision substitute the word "Judgment" for "Decree" wherever it occurs SUNBEAM CORPORATION 953 ment by filing grievances which related to and were in the interest of bettering working conditions for both himself and his fellow employees. Finding himself stymied in his effort to resolve his grievances respecting his transfer to leadman in De- partment 133 and the downgrading of his job duties in Department 437, Moore first sought to bring to the attention of top management in a letter to Pre- sident Gwinn the facts underlying his grievances, facts which had led him to conclude that the Com- pany was engaging in "discriminatory practices in promotional and upgrading procedures."9 Receiv- ing no satisfactory response to his complaint, he prepared his petition which included his letter to Gwinn, his protestations with respect to the unfair- ness of the grievance procedure, and an appeal to his fellow employees and the public to support him through a product boycott in his "endeavors to eradicate deplorable working conditions, to be as- sured unbiased and trustworthy Union representa- tion; and to make `Equal Opportunity in Employ- ment' a statement in fact...." It is obvious that at the heart of his petition Moore was concerned with fair representation for all the employees in accordance with the collective- bargaining agreement and viewed his own ex- perience in trying to resolve his grievances under the grievance procedure examples of the Com- pany's and the Union's disregard of the collective- bargaining agreement. As an indication of their support, Moore requested that the recipients of his petition refrain from making purchases of Sunbeam appliances or causing the purchase of Sunbeam ap- pliances. There is no appeal to his fellow employees to cease producing such appliances by engaging in a strike. On the contrary the entire thrust of the ap- peal is for a consumer product boycott in support of his effort "to obtain equal and just settlements to the aforementioned grievance ... and better work- ing conditions. "10 Thus, all that remains is whether his statement that he would "march in protest of the conditions" at the plant constituted an instiga- tion to other employees to strike. I think not. Moore had specifically limited his request for support from the public and the employees to a product boycott and there is no evidence that by any other overt act or appeal he sought the support of other employees in his protest march." Nor can his mere announcement of his intention to march be interpreted as an implied invitation to the em- ployees to strike. In fact the record shows that he was concerned lest other employees join him and took explicit action to disavow any intention on his part to involve other employees by telling Representative Rapacz to make certain that other employees did not march with him. Further, he told two employees he did not want anyone walking with him. In the absence of any evidence to the contrary, it is clear that the record fully supports the conclusion that Moore did in fact effectively disclaim any intention to instigate a strike which might have been erroneously implied in his an- nouncement of his intention to march at the com- pany's plant. In view of these record facts, I would not strip Moore's concerted activity of its protection under the Act by invoking a strained interpretation of his leaflet as implying an instigation to other employees to strike. The protection guaranteed employees to engage in concerted activities should not be lightly removed by implication, particularly where as here the employee's conduct of record does not reveal any overt acts which could reasonably be construed as an attempt to cause or precipitate an illegal strike. I am not willing to infer an illegal object un- less I am satisfied that there is sufficient objective evidence of record to sustain such a conclusion. Accordingly, I would find that the Respondent's discharge of Moore violated Section 8(a)(3) and (1) of the Act. Finally, I do not agree with Member Brown's conclusion that the legal issues in this case should be avoided by deferring to the resolution of Moore's grievance over the Respondent's failure to transfer him to Department 133 under the grievance procedure. The majority has found that a rank-and-file employee in Department 133 was in fact working full time as a leadman.12 It was his fac- e Moore, a black employee, qualified by examination for and was promised promotion to leadman in Department 133 Though told on the day of transfer that no opening existed, Moore learned that the vacancy was filled by a white employee who assertedly had failed the examination 10 The majority does not contend that Moore 's request for a product boycott was not clearly related to his dispute over working conditions or that it disparaged Sunbeam 's products or that the means employed was not both peaceful and the objectives were not improper for reasons of public policy See N L R B v Local Union No 1229, IBEW (Jefferson Standard Broadcasting Company), 346 U S 464, 476-478, The Hoover Company, 90 NLRB 1614, 1621-22, Sears, Roebuck & Co, 168 NLRB 955 " Moore's petition was addressed to "Employees of Sunbeam Corpora- tion and Purchasers of Sunbeam Appliances " It was not prepared for dis- tribution solely to the employees , but in fact was mailed to various public officials and organizations In addition , copies were distributed to the general public 1R See p 2 of the majority 's decision and particularly fn 1, 'bid , overrul- ing the Trial Examiner 's finding to the contrary 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tual dispute which gave rise to Moore's grievance initially and later his protest in his letter to Gwinn which he incorporated in his petition. Thus, the resolution of Moore's grievance was apparently based on misinformation with respect to the prin- cipal operative fact in issue.13 In my view, this obvi- ous defect in the grievance proceedings makes wholly irrelevant the fact that there is no showing that Moore was not fairly or adequately represented by the Union in pursuing his grievances. It is clear that the grievance proceedings were neither concerned with nor did they result in a resolution of Moore's grievance, i.e., that a rank-and-file employee in Department 133 was working full time as a leadman, indicating to Moore that there had been and still was a lead- man position available for which he qualified. This grievance still remains unresolved for it never has been deliberated upon by the parties because of their failure to have considered the basic fact un- derlying the grievance. Deference to such a proceeding can only serve to foster more acts of self-help by other employees who find themselves frustrated, as was Moore, -by the available grievance procedure. " The Respondent in its brief continues to contend that there was no need for a full-time leadman in Department 133 184 NLRB No 117-T-38 TRIAL EXAMINER'S DECISION I. PRELIMINARY STATEMENT; ISSUES STANELY N. OHLBAUM, Trial Examiner: This proceeding under the National Labor Relations Act, as amended , 29 U.S.C. Sec . 151, et. seq. (Act), was tried before me in Chicago , Illinois, on January 22-23 and February 25-27, 1969, with all parties represented by counsel and participating throughout . The pleadings' present issues as to whether Respondent violated: (I) Section 8(a)(1) of the Act through promulgation , maintenance, and enforcement of an improper rule concerning sol- icitation and petitioning by employees ; ( 2) Section 8(a)(3) and ( 1) of the Act by suspending (October 4, 1967) and discharging (October 17, 1967) James A. Moore , Jr. (Charging Party herein), because he engaged in concerted or protected ac- tivity under the Act, consisting of his distribution to fellow employees on public property adjacent to Respondent's parking lot during nonworking time of a certain document requesting their support of "his and their common grievance against certain ' Complaint issued by the Board's Regional Director for Region 13 (Chicago, Illinois ), on November 18, 1968, based on a charge filed by James A Moore, Jr , on November 13, 1967, answer dated November 27, company policies and working conditions at the plant." Full opportunity was afforded to all parties at the trial to present evidence, both testimonial and documentary, to subpena, examine, and cross-ex- amine witnesses, to present and answer conten- tions, and to propose findings and conclusions. Sub- sequent to the trial, in accordance with leave granted for that purpose, briefs were filed in behalf of General Counsel and Respondent; these, together with the evidence, have been carefully considered. Upon the entire record' and the testimonial demeanor of the witnesses as observed by me, I make the following: FINDINGS AND CONCLUSIONS II. PARTIES; JURISDICTION Respondent Employer, an Illinois corporation with principal office and place of business at 5400 West Roosevelt Road, Chicago , Illinois, where it engages in research, manufacture, and distribution of household electrical appliances, during the calendar year 1966 furnished goods and shipped materials valued in excess of $50,000, directly in interstate commerce from its Illinois location to places outside of that State. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction in this proceeding is proper. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent Sunbeam Corporation is a nationally known manufacturer of household electrical ap- pliances. It has four or five plants in the Chicago area, since October 1967 , employing approximately 2,400 employees (in October 1966 the number was over 3,700). Its main plant (known as "Plant 2") and corporate headquarters are located on West Roosevelt Road in West Chicago, abutting the sub- urban communities of Cicero ( immediately south, across the street from the plant) and Berwyn; to the east and northeast is a Negro neighborhood, the plant lying between a black residential area and white residential area. Plant 2, the locus of the events here involved, employs around 1,200 em- ployees, 80 to 90 percent of them on the first shift (8 a.m. to 5 p.m.). According to testimony of James A. Moore, Jr., the Charging Party, he first entered Respondent's employ in May 1962 as a punchpress operator, con- 1968 z Trial transcript as corrected by my April 29, 1969, order on notice SUNBEAM CORPORATION 955 tinuing until he announced his resignation on May 13 to be effective May 17, 1963, to become a tax- icab driver.' However, on his last day of work, after the Company had already accepted and processed his resignation, he suffered an industrial accident involving an 85-percent loss of use of his left hand. The Company agreed to fulfill its obligations arising out of Moore's accident. Moore, however, wished to return to work. The Company, having already accepted and processed his resignation and con- sidering Moore incapable of performing his previ- ous work, refused. Moore's Union agreed that the Company was not obligated to return Moore to its employ under the circumstances. Moore thereupon charged the Company with discriminatorily forcing his resignation because of union activity (Case 13-CA-5837). The charge was dropped when the Company gave Moore a different job within his al- tered capability, that of power truck operator, in September 1963.' Moore continued in that capacity until 1966, when he became an inventory clerk (Dept. 936). Concededly with the encouragement of Respondent's personnel officials, Moore un- dertook self-betterment courses and in June 1966 passed the Company's test for the position of lead- man, setupman, and group leader. Thereafter, in the period ensuing after Moore's passing of that test (June 29, 1966) and the termination of his employ- ment (October 17, 1967) under circumstances to be detailed, Moore served sporadically and for varying periods in the position of setupman-lead- man in various departments; on each occasion,, however, being returned to his position of power truck operator (or other rank-and-file position) because of departmental retrenchment or the asser- tion of "bumping" rights by senior leadmen dis- placed from their leadmen positions. A brief ex- planation of this may be in order. Respondent's operation at its West Roosevelt Road plant is de- partmentalized. In part because of shifting levels of production demands upon the various departments, the level of activities of the departments varies, resulting in variations in personnel needs. Thus, with a lowered personnel need in a given depart- ment, one or more leadmen employed in that de- partment may lose their jobs as leadmen or even be altogether displaced from employment. In such situations, leadmen so displaced may exercise "bumping" rights over leadmen having less seniority. For this reason Moore was on a number of occa- sions displaced from his leadman position and "bumped" back to his job as power truck operator. This was true of other leadmen as well. Persons in Respondent's employ become leadmen by being placed on a leadman list after passing the Com- pany's qualifying examination. Under Respondent's collective agreement with the Union (of which Moore is a member), the Union polices, although it does not control, promotions to leadman and other vacancies. It is conceded by Moore that the collec- tive agreement requires each available job to be filled by the most senior qualified employee; also that, under the collective agreement, transfers are discretionary with the Company. There is also in ef- fect in Respondent's plant a system whereby em- ployees may temporarily fill leadman jobs on what is known as a "step-up ticket." For example, if a setupman or leadman is required because of the ill- ness or other temporary absence of the leadman, an experienced rank-and-file employee in the same de- partment may be temporarily assigned to act as setupman or leadman pending the return of the leadman or the assignment of a new leadman. Such "step-up ticket" assignments are made only for temporary, persuasive reasons, under the policing of union officials administering the collective agree- ment.5 During his 5-year tenure with Respondent, Charging Party Moore filed a number of grievances against the Company. These included grievances concerning the assignment or distribution of over- time on three occasions (1964 and 1965, prior to his passing the leadman test); over allegedly unsafe working conditions (also prior to his passing the leadman test); over an alleged improper failure to assign him as a leadman to a particular department (Dept. 133; 1966); and over a request by him for a material handler to assist him as a leadman in cer- tain manual work (Dept. 437, 1966). At least the latter two were wholly unsuccessful. According to the testimony of Union Business Agent Janas, Moore's grievances were without exception "per- sonal" to Moore, there being no indication that any other employee had associated with Moore in any of those grievances. According to Moore-but disputed by the Company-his activities as a grie- vant had earned for him with the Company the soubriquet of "attorney" or "troublemaker." At the trial, Moore cited as evidence of this a 1965 ac- cusation to that effect at a meeting on a grievance ' Respondent's 1963 terminal employment record for Moore states "Quitting-He liked working for Sunbeam , but just didn 't care for his fore- man's policies " ' Moore conceded on cross-examination here that he was informed by the Board agent that "unless the charge was withdrawn, it would be dismissed "The charge was accordingly withdrawn ' As explained by Union Representative Janas, there have even been in- stances when rank-and-file employees have been on "stepup" as leadmen for periods perhaps as long as 2 years, on and off, because of temporary surges of work orders . The Union, which policed such matters , did not re- gard them as improper , in the absence of any relevant provision in the col- lective agreement , the entire matter being governed by past practice Also, as explained by company witnesses, in certain cases involving highly spe- cialized operations requiring a prolonged training or experience qualifica- tive period , it-was the practice to utilize qualified rank-and-file employees on "stepup," particularly where a full-time regular leadman was not needed on a reasonable permanently continuing basis Rank -and-file em- ployees on "stepup" as leadmen are paid at leadman rates 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by Moore , by former Company Vice President Moore against his Employer, the following charges, for Employee Relations Uhler, now deceased .6 other than those in this proceeding , were filed by In addition to the foregoing grievances filed by him before the Board against his Employer: Board Case Date of Substance Disposition Charge 13-CA-5837 8-23-63 Discriminatorily forced to resign because of Union activity Withdrawn 13-CA-7102 7- 19-65 Discrimination for filing a grievance Regional Director refused to issue complaint 13-CA-7772 2-27-67 Discrimination for Union or other protected activities Withdrawn 13-CA-7864 & 5-1-67 Discrimination Regional Director 13-CB-2186 for Union or other protected activities refused to issue complaint B. Events Culminating in Termination of Moore's Employment By August 1967 Moore had become a seriously disaffected employee because of his failure to ob- tain a permanent position as setupman or leadman. Regardless of the merit or lack of merit in Moore's position and feelings in this regard, Moore con- cedes his understanding that the permanent setup- man-leadman assignment system is regulated by seniority, which the record establishes he did not have. It is further stipulated upon the record that there is no contention in this proceeding that Respondent's termination of Moore's employment was because of his color or race.7 Credited testimony8 establishes that, except for Moore, no complaint or grievances has been received from any other employee regarding the Company's utilization of employees on "set-up tickets" for leadman jobs. Substantial credible evidence, includ- ing Respondent's records maintained in the regular course of its business , was adduced by Respondent to show that Respondent in no way discriminated against Moore , as a Negro or otherwise , in any of his job assignments.9 ° Respondent's initial objection to the admission of such testimony as barred by the "dead man's statute " of Illinois, where this case was tried, was withdrawn , but Respondent persists in objecting that the testimony is immaterial Respondent's objection on the latter ground is hereby over- ruled, since on the record presented the testimony appears to be potentially material on the issue of Respondent's alleged bias toward Moore because of his grievance activity , and thus potentially material to the basic issue here if those activities be regarded as "concerted ," a subject discussed in- fra However, although I have admitted into evidence the testimony con- cerning the alleged statements of Uhler to Moore, I have nevertheless, under Board policy, scrutinized with care and treat with reserve such state- ments attributed to a deceased person by an interested party Cf Calandra Photo, Inc , 151 NLRB 660, 669 , fn 23, Pasadena Bowling Center, 150 NLRB 729 , 733-734, Chun King Sales, Inc , 126 NLRB 851, 864-865, Sam Wallick, d/b/a Wallick & Schwalm Company, 95 NLRB 1262, 1263, enfd 198 F 2d 477 , 483 (C A 3), Hazen & Jaeger Funeral Home, 95 NLRB 1034, 1043, fn. 9 enfd 203 F 2d 807 ( C A 9), West Texas Utilities Com- pany, Inc, 94 NLRB 1638, 1639 , enfd 195 F 2d 519 (C A 5), Linde Air Products Company, 86 NLRB 1333, 1336-37 , Reynolds Wire Company, 26 NLRB 662, 666-667, enfd as modified 121 F 2d 627 (C A 7) It is further noted that in significant aspects ( e g , the "troublemaker" epithet which according to Moore's testimony was applied to him by Uhler ) Moore's testimony was not corroborated by his own witness Taylor Campbell 'Trial transcript , pp 179-180, quoted infra ° That of Respondent Personnel Director Byrne ° Thus, substantial documentary as well as testimonial proof was ad- duced to demonstrate that Moore 's reporting at the personnel office on Oc- tober 24 , 1966, for a leadman job in Department 133 was the result of per- sonnel office error, attempted to be immediately rectified by assigning Moore at his request to another leadman job (Department 437) on the very same day (whereupon Moore filed a grievance for not having been assigned to Department 133), and that when Moore was "bumped back" from a leadman job it was by leadmen senior to him (e g , Oye) who had them- selves been "bumped back " or who were faced with retrenchment layoff, that Respondent employed other Negroes as leadmen , and that, contrary to Moore's suspicions , rank-and-file employees (e g , Goff, Taylor, and Wood(s)) working as leadmen on "step-up tickets " were not at times here material so employed full-time or under conditions requiring or justifying utilization of a regular full-time leadman Substantial credible evidence (testimony of Respondent 's witnesses Klecan, Mederich, and Calderone) was also adduced to demonstrate that during Moore's assignment as a second-shift leadman in Department 437 he was-contrary to his conten- tion-permitted and, indeed , expected to function in that capacity, per- forming the same duties as had previously been performed there by other second-shift leadmen ( Reyna and Blaha) SUNBEAM CORPORATION 957 By the beginning of August 1967, Moore's dissaf- fection had reached the point where he sent a letter directly to Sunbeam President Robert P. Gwinn. Addressed to President Gwinn, it purports to review Moore's unredressed grievances, states his "feel[ing] that top management is systematically denying me the opportunity to advance to the full extent of my ability . . . only because I am a Negro"; charges Sunbeam with "discriminatory practices in promotional and upgrading procedu- res"; points out that a meeting with Sunbeam Pre- sident Gwinn and Union Business Representative Janas, requested in a previous letter from Moore in February, was denied;10 and, stating that his com- plaint "can not be ignored," now "again ... request[s] a date to meet with you [i.e., Sunbeam President Gwinn] and Mr. Janas. Time is of the es- sence of this request . . . : the only alternative of my request, is for me to present my grievances to my co-workers, and the public." Concerning Moore's August 11, 1967, letter to Sunbeam President Gwinn, on August 17, 1967, Sunbeam Vice President and Director of Employee Relations Palenchar wrote President Gwinn, with a copy to Sunbeam Chicago Division Employee Rela- tions Manager Hosek: Your office sent down to me a letter from a Sunbeam employee , James A. Moore , Jr., ad- dressed to you on August 11, 1967. In addi- tion , you directed to us a formal charge of al- leged racial discrimination by Mr. Moore that he filed with the N.A.A.C.P. with copies to the Secretary of Defense , Air Force, Army, and Navy in Washington , D.C. Chuck Hosek will pick this up from this point, and if the N.A.A.C.P. calls you , simply direct the call to either Chuck or myself. Mr. Moore has filed a grievance that went through the grievance procedure and the Union did not process it any further as it lacked merit. Mr. Moore then filed an unfair labor practice charge at the N .L.R.B. that has been turned down. This racial discrimination charge apparently is one more step in his effort to cause trouble and to generate some kind of problem for both the I.A.M. and Sunbeam. To this point he had played down racial dis- crimination and emphasized, generally, Com- pany and Union discrimination. 10 Moore's February 18, 1967, letter to Sunbeam President Gwinn, requesting Gwinn personally "at the earliest possible moment " to meet with Moore , the union representative, and Sunbeam Chicago Employee Relations Manager Hosek , is characterized therein by Moore himself as an "appeal made by me and in my behalf " It was referred to Chicago Divi- sion Employee Relations Manager Hosek , who on March I wrote a reply to Moore urging him to present the matter through contractually established grievance channels which would "assure[d ] proper handling of these problems " Moore thereafter ( March 1967) met with Personnel Director We will patiently handle this and, I am sure, it will end up in the same position as the past. There is no basis for any such charges. Moore's August 11, 1967, letter to Sunbeam Pre- sident Gwinn not having evoked a satisfactory response from Moore's point of view, at the end of September or beginning of October Moore caused about 3,500 copies of that letter to be mimeog- raphed with a heading and an addendum. The heading shows that it is addressed to "Employees of Sunbeam Corporation and Purchasers of Sunbeam Appliances" and is "AN OPEN LETTER TO Mr. ROBERT P. GWINN, President." There is then set forth the letter of August 11, 1967, from Moore to Gwinn, followed by a series of statements com- mencing with: "Mr. Gwinn and Mr. Janas has refused to meet with me in an effort to resolve these problems in an honorable manner." The document, which Moore refers to as a "petition," goes on to speak of the "ignorance" of Sunbeam President Gwinn as well as Union Representative Janas of their obligations to Sunbeam employees and union members, Moore's intention not to "ac- cept hunger and poverty, injustice and indignity, nor shall I accept less than my fair share of the profits I have earned from the investment of years of service to the Sunbeam Corporation"; and of the alleged denial to him of leadman position (Dept. 133) because of "my race."" Moore then "peti- tion[s] .... support" for "my endeavors" from the persons to whom it is addressed, stating that "Your support will be greatly appreciated, and can be of significant value to this cause." Your support should be rendered in one or several ways.... 1. Please refrain from buying any Sun- beam appliances or any appliances made by Sunbeam Corporation under another Trade name , for gifts or personal use, and ask your relatives and friends for their support. 2. Sign your name , address, city and state on a post card (do not list your place of employment). • Along with the statement "A or B" .. . A. "I support your cause," and I shall refrain from making or causing the purchase of any Sunbeam Appliances until I know that justice has been served. B. "I do not support your cause" ... . Byrne for a full discussion of his complaints, in the presence of a union representative , and was told that Company President Gwinn did not wish to set a precedent by meeting with Moore ( as of I of 2,400 employees in Chicago alone ) personally " There are also set forth a number of accusations against the Union There is no complaint against the Union before me, the Board 's Regional Director and General Counsel having refused to issue such a complaint on charges filed by Moore 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and send to; Mr. James A. Moore, Jr. 7015 South Laflin Street Chicago, Illinois 60636. The Moore document states that "COPIES OF THIS PETITION ARE SENT TO," inter alia, The President of the United States; a Justice of the Supreme Court of the United States; the Secretaries of Defense, Army, Navy, Air Force, and Labor; the Civil Rights Division of the Department of Justice; the Federal Equal Employment Opportunity Com- mission; the Office of Federal Contract Compliance of the Department of Labor; the United States Senators from Illinois; the Governor of Illinois; the mayor of Chicago; various Chicago newspaper edi- tors; various religious leaders, clergymen, and union leaders; and various organizations dedicated to the elimination of anti-Negro prejudice. The "petition" concludes: "On October 24,1967 I shall march in protest of the conditions here at Sunbeam Corporation. This will be an all day protest march in front of the company, 5400 West Roosevelt Road, Chicago, Illinois."" It is conceded that on October 2, 1967, Moore handed a copy of this document to fellow-employee Patricia Thomsen in the plant during working hours. Based on credited testimony of Patricia Thomsen and the record as a whole (including ad- missions by Moore), it is found that the handing of this document to Miss Thomsen together with an accompanying discussion of several minutes oc- curred during the working time of both Miss Thom- sen and Moore. At the time this occurred, Respon- dent's "Employee Handbook" (effective February 1948 and revised November 1960) contained the following provisions: SOLICITATIONS AND SELLING Solicitations between employees are forbidden on Company property. It is granted that there are many worthy projects for which solicita- tions might be made, but it is deemed that the best interests of all employees are served by limiting solicitations in-the plant to the "drives" sponsored by the Company for Community Fund, Red Cross, etc. The promotion of sales of any kind to fellow employees is also forbidden on Company premises. Tickets, "chances," supplies, or merchandise or any sort are included in this restriction. * * * * COLLECTIONS * * * * Under no circumstances will collections among employees for any other purpose [i.e., other than death memorials or wedding and depar- ture gifts] be permitted on Company time. Em- ployees promoting unauthorized collections will be subject to dismissal. PETITIONS The Company will not recognize petitions from employees for any purpose whatsoever, and furthermore, will not permit the circulation of petitions on Company premises . Employees who are responsible for the circulation of peti- tions on Company premises will be subject to dismissal . Employees wishing to register com- plaints or make suggestions, may discuss any such matter with their foreman or with the Per- sonnel Department. It was testified by Respondent's former employee relations manager (for 20 years until his retirement in August 1968) and member of the Company's collective agreement negotiating team Hosek, that, notwithstanding the quoted language from the em- ployee handbook concerning solicitation, the rule against solicitation applied only to working time as provided in the collective agreement13 in the pos- session of the union stewards. The Moore "peti- tion" given by him to Miss Thomsen on October 2 as indicated fell into Respondent's hands, resulting in Moore's suspension on October 3 pending in- vestigation."' It is conceded that thereafter, for 4 days commencing on October 3, Moore not only gave further wide distribution to this document by "There is also added to this statement the following in handwriting "The company terminated my employment Oct 4, 1967, without just cause , under the guise of enforcing the company rules Even though the rules as defined in the Employee Handbook are contrary to the facts " However, the evidence establishes that widespread distribution of the "petition" was made by Moore even prior to October 4-when, inci- dentally, he was not discharged as he states, but merely suspended. The circumstances attending Respondent's suspension of Moore on October 4 and his discharge on October 17 are detailed below ""There shall be no solicitation of membership, and there shall be no participation in Union or anti-union activity during working hours, other than as hereinafter provided in the processing of grievances " Collective agreement of January 3, 1967, art 1, par 2 " Moore testified that he refused to accept this suspension, stating to Sunbeam Personnel Director Byrne, "I [Moore ] would not recognize the verbal suspensigtt` in order for me to honor the suspension, it would be in writing,; tmg the duration and the reasons for my suspension " Ac- cording to Persoflel Director Byrne , Moore refused to surrender his plant pass and ,[oeker key Moore testified, "I [Moore] told him [Personnel Director Byrne) that I would report to work as usual until such time as I received this in writing " Moore accordingly returned to work the next day (October 4 ) When he received a written notice of suspension that morn- ing, according to his testimony he returned it "because it did not specify what my misconduct was And it did not have the duration of my suspen. sion And; also, I was not offered union representation . " which he had allegedly requested SUNBEAM CORPORATION mail but that he also distributed it personally by hand on public property at and near the entrance to Sunbeam's West Roosevelt Road and other Chicago premises, as well as to his taxicab passen- gers and friends and relatives. During part of the time when Moore handbilled the described document, his suspension was in grievance status, a grievance having been filed on his behalf by the Union on October 5. He neverthe- less continued to handbill and thereafter on Oc- tober 24 he picketed, it being according to his testimony his "intention .... to picket unless [I] received the opportunity to meet with [Sunbeam President] Mr. Gwinn [personally] of if [my] Grievances 1155 and 116015 were [not] settled satisfactorily." The upshot of this activity was that Moore's em- ployment was terminated by Respondent on Oc- tober 17 for the stated reasons of solicitation, peti- tioning, inattention to duties, and misconduct (in relation to his giving to and discussing the described "petition" with Miss Thomsen in the plant during working time on October 2); dishonesty, falsification, and misconduct (in rela- tion to the contents of his "petition," including his reference to Sunbeam President Gwinn as "ignorant"); conduct harmful to his fellow-em- ployees; and encouraging a strike and boycott of products manufactured at the plant. The subsisting collective agreement provides:16 In view of the provision for final arbitration -of grievances arising under this agreement, the Union and its members, individually and col- lectively agree that during the term of this Agreement they will not cause, authorize, en- courage, permit or take part in any strike, and the Company agrees there shall be no lockout. (a) For the purpose of this Section, the term "strike" includes a sit-down, stay-in, slow-down, walk-out, curtailment of work, stoppage of work, willful refusal to per- form assigned work, or any other inter- ference with work or orderly production or picketing of the Company's plant or premises. On October 17, 1967, Respondent's Employee Relations Manager Hosek wrote Union Representa- tive Janas that Moore's invitation to all Sunbeam employees, in his described "petition," to join with him as he proposed, constituted encouragement to strike, in violation of the subsisting collective agree- 15 These particular grievances dealt with Moore's not having been as- signed as a leadman in Department 133 rather than in Department 437 (Grievance 1160) and with Respondent 's failure to comply with his request for a material handler to assist him as a leadman in Department 437 (Grievance 1155) " Art 1, par 5 and 5(a) 'r Janas testified that even prior to October 5, he had been receiving inquiries from shop stewards "as to whether or not they should recognize a picket line if there is going to be a picket line And I told them emphatically that this was not a sanctioned picket from the Union and, therefore, they should not recognize it And I told them that I would also be there on that 959 ment to which the Union as well as Moore were bound . Hosek placed the Union on notice that it would hold the Union responsible for the con- sequences . According to the testimony of Union Representative Janas, he received a telegram from Moore informing Janas that Moore had been suspended and asking Janas to meet him at the plant on October 5. On that morning (October 5) at the plant, Janas wrote out a grievance for Moore. "However, I [Janas] did instruct Moore that based on his petition, that he said he was going to picket and asking people to boycott Sunbeam 's products, I told him if he did that , he would be taking the matter out of our hands because we have a 'No Strike' clause in our contract . Therefore , if he was going to picket the place , I wouldn 't want anybody to misconstrue that we are acquiescing in violation of the contract . I so informed him that way. He said he was going ahead and do it. I said , `Well, if you do, you are going to take it out of our hands. "117 Against this background , when Union Representa- tive Janas received Hosek 's letter of October 17 relative to Moore's threatened picket for October 24, Janas informed Respondent that the Union "recognized the obligations of the Union and that I [Janas] would be there [ on October 24] to make certain that we would in no shape or form be tied in. "18 On October 24, 1967, Moore nevertheless car- ried out the "march" announced in his described "petition," by picketing Respondent's West Roosevelt Road plant . At this time , his employ- ment-termination grievance was still in process, the second-step meeting having occurred on October 11. At the trial, Moore conceded on cross-examina- tion that he had given the following answers to questions in a December 1968 deposition in the presence of his attorney , in a Federal court suit: Q. Isn't it a fact that the grievance procedure and the arbitration is the exclusive method of resolving disputes between the em- ployees and the Company? A. And I believe in that, too. Q. Are you aware or were you aware at that time , Mr. Moore, that there was a provision in the contract, called a "No Strike " provision? A. Yes. Q. Do you know what that provided? A. Yes. Q. What did it provide? given date to make certain that our contract was not going to be-it wouldn 't be abrogated And I had to emphatically take the position in view of the fact that we had a contract, that we had a'No Strike ' clause in the contract, that if in any shape or form we were to be participating, we would be subject to suit and we would be libelous [? liable] " 's Although Moore may, as he claims, orally have expressed the idea to the union representative that he did not wish others to picket with him, there is no indication that he effectively , in writing or otherwise , withdrew or countermanded the invitations for support expressed or implied in the written "petition " which he had widely disseminated 427-835 0 - 74 - 62 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I believe that it meant-you want my be- lief? 0. Yes. A. I believe that it meant that an individual could not strike the Company or a group could not strike against the Company without the authority of the Union, without the sanction of the Union. Q. Mr. Moore, was it your understanding that the use of the grievance procedure meant that individuals could not take any other action but the use of the grievance proceeding. What I mean is that they couldn't strike and couldn't picket, that the grievance procedure was the only procedure that was to be fol- lowed? A. Yes. 0. Do you believe that you were following the grievance procedure when you handed out handbills or when you picketed on the 24th of October? A. No. 0. Did you think you were? A. Pardon me? Q. Go ahead. A. Repeat your question, please. MR. CHARONE. Read it, Mr. Reporter. (Record read.) THE WITNESS. That is correct. By Mr. Charone. Now, you thought you were doing something that was outside the grievance procedure? A. Yes. The third, final step of Moore's employment ter- mination grievance took place on October 31, 1967. Its outcome was unsuccessful to Moore, whose employment termination was confirmed. On November 8, 1967 the Union informed Moore, who had meanwhile filed a discrimination charge or complaint with the Fair Employment Practices Commission , that it was unwilling to proceed to ar- bitration.19 From the trial transcript: TRIAL EXAMINER: ... Is it here claimed or contended that Respondent's discharge of Mr. Moore was in whole or in part because of his color or race, or that the Respondent had such a policy?" What is General Counsel's position on that, Mr. Crawford? MR. CRAWFORD [counsel for General Coun- sel]: The position of Counsel for General Coun- sel, you Honor, is that we are claiming and con- tending only that Mr. Moore was discharged 'v There is no indication that Moore pursued or attempted to pursue ar- bitration, as he may have been able to Cf Port Drum Company, 170 N LRB 555, and cases there cited As has been indicated , Moore's charges against the Union , which according to him alleged that the Union was in part responsible for his discharge and "had failed to process my charges in an objective manner I [Moore] felt their actions were dubious," resulted in refusal by the Board's Regional Director and General Counsel to issue a complaint thereon According to Moore, his charges or complaints to the because he engaged in concerted activity, as that term has meaning within the National Labor Relations Act. TRIAL EXAMINER: Specifically, with regard to the question I raised, is the General Counsel contending or claiming that the discharge was in whole or in part because of Mr. Moore's color or race, or that Respondent had such a policy? For the purpose of this instant proceeding, is that claim or contention being made here? MR. CRAWFORD: No. We are claiming that he was discharged as any other employee may have been discharged for concerted activities, not based on race but based on the fact that he was an employee at Sunbeam, employee within the meaning of the Act of concerted activities or within the meaning of the Act as other em- ployees that he was discharged. TRIAL EXAMINER: Very well. I believe you have made your position crystal clear as to what this discharge was; without reference to any contention or claim that Mr. Moore may be making or may be advised to make in any proceeding other than this. The record should so indicate. [Emphasis supplied.] C. Findings and Rationale The complaint (as amended at the hearing) al- leges that, in violation of Section 8(a)(1) and (3) of the Act, Respondent ( 1) maintains an invalid rule proscribing solicitation and petitioning "on company property ... [or] on company premises" and (2) suspended and discharged its employee Moore because he "distributed to fellow employees on public property adjacent to the company parking lot during non-working time" the "petition" which has been described and that Moore was "engaged in concerted or protected activity" in so doing. [Emphasis supplied. ] We first consider Respondent's no-solicitation no-petitioning rule. It is contained in an "Employee Handbook" distributed to employees and intended to spell out for them the requirements of their em- ployment and the conduct expected of them by their Employer. As has been noted above, there ap- pears to be a degree of inconsistency between, on the one hand, the rule in the employee handbook, and on the other, a provision dealing with solicita- tion and union-related activity in the subsisting col- lective agreement. Although the employee hand- book proscribes solicitation and petitioning on company premises without regard to whether car- ried on during worktime, the collective agreement Equal Employment Opportunity Commission (EEOC) as well as to the Il- linois Fair Employment Practices Commission (FEPC) were likewise dismissed , but his suit in the Federal district court against Employer and Union under Section 301 of the Act and Title VII of the Civil Rights Act of 1964 was pending at the time of this trial 20 Cf, e g , United Packinghouse , Food and Allied Workers International Union [Farmer's Cooperative Compress] v NLRB, 416 F 2d 1126 (CADC) SUNBEAM CORPORATION limits the proscription to "working hours" without regard to where it is carried on. Respondent at- tempted to establish through testimony that in prac- tice the rules in its employee handbook are applied only to worktime, thus conforming to the collective agreement the requirements of the handbook, which has, however, not been changed, in Em- ployee Relations Manager Hosek's words, for reasons of "economy" pending exhaustion of exist- ing stocks of the current edition of the Handbook. I do not, however, believe this should be regarded as a persuasive justification or valid defense for the continuing distribution to employees of the in- dicated rules as printed in the employee handbook, nor for Respondent's failure at least to issue a cor- recting statement or announcement; provided, of course, that those rules as there stated are improper under the Act.21 That they are improper under the Act is quite clear, since they constituted an inter- dict against solicitation even on employees' own time (e.g., meal and rest periods). Although em- ployees may properly be forbidden by their em- ployer to engage in union solicitation on the em- ployer's premises while soliciting and solicited em- ployees are or should be working (Republic Avia- tion Corporation v. N.L.R.B., 324 U.S. 793; Republic Aluminum Company v. N.L.R.B., 394 F.2d 405, 408 (C.A. 5)), such solicitation on the em- ployer's property during the soliciting and solicited employees' own time may be forbidden only in the presence of unusual circumstances (Mason & Hanger-Silas Mason Co., Inc. v. N.L.R.B., 405 F.2d I (C.A. 5), such as the necessity of maintaining production or discipline. The Board has also crystallized a distinction between solicitation and distribution by employees on employer premises: (1) as to solicitation: although an employer rule for- bidding union solicitation by employees during their working time in any plant area is presumptive- ly valid, an employer rule forbidding such solicita- tion during nonworking time is presumptively in- valid even though limited to work areas:' (2) as to distribution: although an employer rule forbidding distribution of union literature by employees in work areas during nonworking or working time is " Cf, e g, N L R B v Mexia Textile Mills, Inc , 339 U S 563, 567, NLRB v Lexington Chair Company, 361 F 2d 283, 286,295 (C A 4), G & W Electric Specialty Company v N L R B , 360 F 2d 873, 874 (C A 7), N L R B v Walton Manufacturing Company, 289 F 2d 177, 180-181 (C A 5) Concerning an unenforced but invalid no-solicitation rule, the court had occasion to state in Jas H Matthews & Co v N L R B , 354 F 2d 432, 441 (C A 8), cert denied 384 U S 1002 "In regard to his contention [ i e , that the no-solicitation rule was not enforced as written], we point out, first, that it is well established that '(w)hether (an employer) infringed upon its employees' freedom to engage in union or concerted activity depends upon the reasonably foreseeable effects of its conduct upon its employees ' N L R B v Walton Manufacturing Co, 289 F 2d 177, 180 (5 Cir ) As the no-solicitation rule involved herein, on its face would ban per- fectly legal Union solicitation on non-working time, and as the Company never gave notice of any rescission of the rule (see Time-O-Matic, Inc v N.L R B., 264 F .2d 96, 101 (7 Cir.)) or a purpose not to so interpret it, an employee desiring to engage in union solicitation 'might well be deterred, or else reasonably assume that he acted at his peril ' N L R B v Walton Manufacturing Co , supra As aptly stated by the Second Circuit in holding a similar rule unlawful because of its breadth (N L R B v Miller, 341 F 2d 961 presumptively valid, an employer rule forbidding such distribution in nonwork areas during nonwork- ing time is presumptively invalid. Stoddard-Quirk Manufacturing Co., 138 NLRB 615. Applying those principles here, inasmuch as the indicated presump- tions have in no way been overcome, it is apparent that the rules in Respondent's employee handbook improperly proscribe (1) plant-premises solicitation by employees on their nonworking time and (2) plant-premises distribution by employees in non- work areas during nonworking time. Accordingly, it is found that Respondent's described rules in its employee handbook as presently worded infringe upon legal limitations in the indicated respects.23 We proceed to consideration of the matter of the termination of Moore's employment. To begin with, it is not alleged that Moore's suspension and discharge were because of any violation of Respondent's described no-solicitation, no-distribution rules; nor could it justifiably be so contended, since Respondent's published no-sol- icitation, no-petition rules, unduly broad though they be, do not even purport to reach off-premises solicitation or distribution, which the complaint (as amended at the hearing) alleges was the reason for Moore's suspension and discharge. There can be no doubt that the termination of Moore's employment was the direct result of his wide circulation of the described "petition." It is therefore essential to determine whether the dis- tribution of that document in the form which it took and in the manner and purpose for which it was circulated were activities for which his employ- ment was, in view of the Act, invulnerable to ter- mination . Contending that they were, General Counsel maintains that Moore was discharged in violation of the Act because he handbilled his "petition" to fellow employees on public property and thereby "engaged in concerted or protected ac- tivity for the purpose of collective bargaining or mutual aid or protection." Disputing this, Respondent contends that Moore's employment was terminated because of the congeries of circumstances commencing with his discussion of his "petition" with Miss Thomsen 870, 871, 874) 'The true meaning of the rule might be the subject of gram- matical controversy However, the employees of respondent are not gram- marians The rule is at best ambiguous and the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it "' Y' The latter part of the rule, sometimes known as the Peyton Packing rule , announced by the Board in Peyton Packing Company, Inc , 49 NLRB 828, 843-844, enfd 142 F 2d 1009 (C A 5), cert denied 323 U S 730, was expressly approved by the Supreme Court in Republic Aviation Cor- poration v NLRB , supra, 804, in 10 " Respondent urges that under the authority of such cases as N L R B v Gale Products, Division of Outboard Marine Corporation , 337 F 2d 390 (C A 7)-which it concedes states a principle in conflict among the cir- cuits and not acquiesced in by the Board-the no-solicitation, no-distribu- tion rules contained in its employee handbook should be considered valid since agreed to by the employees through their Union It is unnecessary to deal with this contention since, unlike Gale, it has not been established here that the described "prohibitions are the fruits of collective bargaining agreed to by the employees involved" (Gale, supra, 391) Here the collec- tive agreement itself indicates the contrary 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant during working time on October 2 and including his extensive distribution by mailing and handbilling of that "petition" to its addresses (in- cluding employees), considering its demands, in- vitations, statements of intention, and other con- tents. As summarized in Respondent's termination notification and more fully explained through Respondent 's witnesses24 at the hearing and in its brief, Respondent's reasons for suspending and ulti- mately discharging Moore included his inattention to duty, violation of work requirements, violation of the collective agreement, and interference with the work of employee Patricia Thomsen, when he ac- costed her during work for the purpose described;25 the misleading, dishonest, and false contents, as well as the deliberately and highly misleading omis- sions, of Moore 's "petition ";26 his misconduct in widely circulating his_ "petition" among employees charging Sunbeam President Gwinn with "igno- rance" of his obligations to employees and unwilling to resolve problems "in an honorable manner"- characterizations insolent toward the chief execu- tive of his employer and inconsistent with con- tinuance of a reasonably acceptable level of discipline in an employer-employee relationship; his obdurate continued insistence upon a personal con- frontation with no less than Sunbeam President Gwinn himself-which, considering the vast size of Respondent's workforce, was unreasonable 21 as well as unnecessary, and intended by Moore purely as an improper and intensive pressure tactic; his in- transigent unwillingness to be governed by the grievance-arbitration procedures established by the collective agreement to which he, his fellow-em- ployees, and his Union were contractually bound; his express solicitation of Sunbeam employees to "refrain from making .... Sunbeam appliances," and his announcement of an "all day protest march in front of the company"-in violation of the col- lective agreement barring striking and picketing under the total circumstances, his tactic of inviting in effect a nationwide boycott of his employer', products in order to pressurize his employer intc according him what would have been preferentia treatment contrary to the collective agreement tc which he was bound; and his calculated irresponsi bility in deliberately attempting for purely persona, advantage to kindle wholly unwarranted racial pas sions-action which, considering the neighborhooc in which Respondent's plant is located, was fraught with sinister hazard of escalation of racial disorder. To those familiar with proceedings before the Board it is obvious, and to others not familiar of less familiar with those proceedings it is well to be aware, that the only issue here is whether any requirement of the National Labor Relations Act ha, been violated by Respondent in the respect alleged there is no other issue which the trial examiner ha, jurisdiction or power to determine. By statutor3 fiat,28 those limited and narrow issues which are here for determination in this administrative proceeding must be resolved upon the basis of pre ponderating credible evidence; we have repeatedl3 been warned by higher authority that findings upor a more meager basis will not be permitted to stand I have therefore necessarily been heedful of his ad monition in reviewing the record with care in order t( assess whether this burden of proof and persuasion which initially is and finally remains upon Genera Counsel '21 has been satisfied in relation to the nar row issues permissible for determination here under the limited grant of authority vested in the Board by the National Labor Relations Act. Upon close consideration, in my opinion it cannot justifiably he held that General Counsel has met his burden of establishing by a fair preponderance of the substan- tial credible evidence upon the record as a whole- according to all items of evidence, both documen. x' Principally Respondent's former vice president and director of em- ployee relations ( Robert E Palenchar, now vice president of personnel, Swift & Company ) and its former Chicago Division employee relations manager (Charles J Hosek , now retired ) Both impressive witnesses; their testimony in the indicated aspects is credited "" It is not disputed that employees are permitted to exchange words at work It is unessential to determine whether or not the circumstances and length of time involved in Moore's encounter with Miss Thomsen fall into this category , since Respondent concedes the incident alone would not have resulted in Moore's discharge, even though according to Employee Relations Manager Hosek it was unprecedented in Hosek 's 20 years at the plant. " For example Moore's omission to mention that following his February 1967 letter to Sunbeam President Gwinn , company officials did in fact in- vite Moore to confer with them about his problems, and that Moore did so, Moore's assertion that the "only alternative " which remained to him was to go to his "co-workers and the public," in the face of his known express right (as well as requirement ) under the collective agreement to pursue a grievance procedure and arbitration , his accusation that Respondent was in violation of various laws and legal requirements, in the face of the fact, also well known to him, that his charges and complaints had been dropped or officially dismissed , his accusations of discrimination against him as a Negro, being irresponsibly false in fact , could only have been intended to pressurize Respondent into giving him a job which Respondent could not lawfully give him under the collective agreement , under threat of arousing racial passions and plunging the factory as well as the Chicago neighbor- hood in which it is located into racial strife, his statement that he was being harassed by management , in the face of the fact, likewise well known s- him, that it was management which had encouraged and provided him wit the wherewithal to complete the educational prerequisite to his qualiftcs tion and assignment as a leadmen regardless of race, his deliberately fals assertion that his leadman job had been "downgraded only because am a Negro" was irresponsibly calcaulated to kindle racial passions, and hi circulation of a "petition" irresponsibly falsely asserting that "Charge herein stated or implied are substantiated," in the face of the objectiv facts and the deliberately omitted facts that they had been withdrawn b him or formally dismissed by the NLRB and other official agencies " According to Respondent Personnel Director Byrne, from 1962-196 there were some 1,300 grievances filed by employees in two of the bargair ing units at its West Roosevelt Road plant alone Moore conceded on cross examination that he was "well aware" that he "had no contractual right t a meeting with [Sunbeam President ) Mr Gwinn ," but that he neverthele, at no time withdrew his demand to confront him personally Cf N L R B Illinois Tool Works, 153 F 2d 811, 815-816 (C A 7), Norfolk Conveyor, 15 NLRB 464 " Administrative Procedure Act, 5 U S C Secs 556(d) and 706(2)(E Consolidated Edison Co of New York, Inc v N L R B , 305 U S 197, 22S 230, Willapoint Oysters, Inc v Ewing, 174 F 2d 676, 690, 691 (C A 9 NLRB v Bell Oil &GasCo,98F2d406,410(CA 5),NLRB v A Abell Co , 97 F 2d 951, 958 (C A 4) "Administrative Procedure Act, supra, in 27, Sec 556(d), Consolidate Edison Co v N L RB ,supra, fn 28, Blue Flash Express, Inc , 109 NLR 591, 592, Attorney General 's Manual on the Administrative Procedure Ai 75(1947) SUNBEAM CORPORATION tary and testimonial, the weight which they deserve-that Respondent's termination of Moore was because of protected concerted activity as al- leged. Respondent urges that Moore's described actions did not constitute concerted activities within the ambit of the Act. Under the record here made, this contention appears to be sound. General Counsel supports his position to the con- trary with several arguments and evidentiary items, which will be briefly considered. To begin with, General Counsel points to Moore's alleged assistance or advice to fellow-employees on unre- lated matters and occasions , some in the somewhat distant past . Even if true, these do not establish concerted activity here. Next, it is urged that if Moore had succeeded in his endeavors on behalf of himself, it would or could have had impact on others . This argument, however, among other things places the cart before the horse. First, it as- sumes the legality of Moore's activity-the core is- sues here involved ; next, it speculates regarding a possible effect of a possible outcome of Moore's ac- tions; further , it assumes that Moore 's actions were propelled by concern for that "mutual aid or pro- tection" secured by the Act, and not simply by self- concern or aggrandizement. It seems clear from the wording of Moore's August 11, 1967, letter to Sun- beam President Gwinn demanding a personal meet- ing, that Moore is interested in himself alone; there is even no suggestion that any other employee is acting with him , nor that Moore is a spokesman for, nor even a self-appointed vindicator of the rights of others. The entire letter is cast in the first person singular throughout . It is clear that its author's con- cern is for himself exclusively, arising out of a per- sonal dissatisfaction involving himself alone. His is 3° Miss Thomsen testified that when Moore accosted her at work on Oc- tober 2 and handed her his "petition " under the circumstances described, he asked her to "read it on my [Thomsen 's] break and let him know what I thought of it", later that day, when she again encountered Moore, who said he "hoped he [ Moore] didn 't get me [Thomsen ] in any trouble as a result of the letter," she told Moore that she thought part of it was "a little bit strong where if you subscribe to his belief, you should stop buying Sunbeam products I couldn 't see any harm in the rest of the petition " This can hardly be considered to constitute " concerted activity" on Miss Thomsen 's part in association with Moore 31 Thus, James H Daniel, employed by Respondent since 1965, and an acquaintance or friend of Moore, as well as his carpool companion, testified as General Counsel 's witness that when Moore told him around October 1967 that " if he [Moore ] couldn 't get satisfaction about his problem , that he would march he told me had taken a test for lead- man, that he had passed and that a job that he was supposed to take, they didn't give it to him I [Daniel ] didn't- I couldn 't give him any advice on anything but I talked to him about it, you know I told him that I felt that if he had passed the test, had taken a test and passed it, f felt like, you know , that he deserved the job " (Emphasis supplied ) Also according to Daniel , he received a copy of Moore's petition by mail at home "after he [Moore ] had marched and he subsequently told Moore " that I was sup- porting him " ( Emphasis supplied If by "marched " Daniel referred to Moore's picketing , it was after Moore's employment had been terminated on October 17 ) Daniel conceded he had "no personal knowledge what- soever" as to the facts involved in Moore's case On his testimony I have great difficulty in regarding his reactions to Moore's situation as more than an expression of personal sympathy for Moore , short of "concerted activi- ty" with the latter Another General Counsel witness , Will C Lewis, for- merly a union -shop committeeman to steward, testified that "about" the time Moore was "on the streets" he requested Lewis' support , in response to which Lewis told him that " I [Lewis] felt that he [ Moore] had the 963 no voice with or for others, but an unaccompanied solo. Moore's subsequent incorporation of that solo into a subsequent "petition" authored and dis- seminated by himself alone, wherein for the first time he occasionally editorializes with a "we," is in- sufficient without more to orchestrate it, the "peti- tion" continuing to be slanted to his personal situa- tion. If mere possibility of impact on others who might be affected by individual action were the test of "concerted" activity, distinction between in- dividual and concerted activity would be effectively erased. - _ - It is further contended in this aspect by General Counsel that Moore's action in handing a copy of his "petition" to Miss Thomsen under the circum- stances described establishes, or supports the characterization of, his action as "concerted activi- ty." I cannot agree. In my opinion, the fact that he handed a copy of his "petition" to Miss Thomsen and briefly asked for her opinion concerning it is insufficient to constitute concerted activity. Miss Thomsen in no way joined in his action, nor was Moore speaking to management on her behalf.30 The same may be said in regard to the other items put forward in the attempt to make out "concerted activity"-they would appear to fall short of establishing activity of that nature through the sub- stantial credible evidence which is essential.31 Mere expression by a few employees (out of a factory population of thousands) of personal empathy or commiseration with another employee in a sup- posed personal problem of the latter, does not equate with or establish protected, concerted activi- ty.32 Upon the record as a whole, it is found that under the particular circumstances here presented it has not been established by the required substan- privilege to take it to the courts or where he thought that he would get the action I had no way of giving him legal advice because I was not an at- torney I told him that I felt that he was right and I would come to the courts and tell the court that I felt that he was right I thought that the petition was well written and had merits " Finally, employee John En- glish testified that about 2 weeks after receiving a copy of Moore 's "peti- tion" by mail and about a week after Moore stopped handbilling, he mailed to Moore a postcard in the wording suggested by Moore in the "petition," signed by English 's wife as well as by English , indicating "support"for "your [i e, Moores] cause" and to "refrain from making or causing the purchase of any Sunbeam Appliances until I know that justice has been served "( Emphasis supplied ) There is nothing , however, in any of these personalized and Moore-re- lated expressions of sympathy by a minuscule number of fellow-employees out of a huge plant population-there is no evidence of even so much as a second postcard to Moore expressing support in connection with his per- haps 3,500 distributed copies-to indicate anything other than personal sympathy, commiseration, or support to Moore individually in connection with Moore's supposed individual problem In my opinion, to attach addi- tional or broader significance to these isolated indications of sympathy for Moore would be to indulge in speculation to enhance their true nature and quality Upon the record as an entirety , I am persuaded that they fail by substantial credible proof to establish "concerted activity" within the meaning of the Act 32 While not determinative , it is also noted that Respondent's Employee Relations Manager Hosek credibly testified that to his knowledge Moore at no time "endeavor [ed] or solicit [ ed]" the Company to take any action on behalf of any employee or employees other than himself and that credited testimony of Union Representative Janas similarly establishes without ex- ception the grievances filed by Moore were "personal to him," with no in- dication of association of any other employees therewith 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tial credible proof that Moore here engaged in pro- tected, concerted activity within the meaning of the Act.33 There are additional reasons why it would seem that General Counsel cannot prevail in this proceeding; namely, the existence of an applicable grievance -arbitration machinery to which unit em- ployees are contractually bound,34 and which has not been pursued to arbitration ;35 as well as the seemingly unprotected character of the activities resulting in the discharge , considering the elected methodology of accomplishment of the particular personal objective.36 It was indicated at the hearing that there is pending in the United States District Court an action by Moore against the Union as well as his employer, under Section 301 of the Act and Title VII of the Civil Rights Act of 1964. In that case and forum, the contentions with which Moore appears to be basically concerned may presumably be fully aired . The determinations and disposition in the instant proceeding are necessarily limited to issues arising under the National Labor Relations Act, which circumscribe the outermost boundaries of inquiry and power here. Under all of the circumstances, it is found that it has not been established by a fair preponderance of the substantial credible evidence on the record as a whole that Respondent's described suspension and termination of the employment of the Charging Party were, in the specific situation here involved, because he engaged in concerted activity protected under the Act as alleged in the complaint. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Assertion of jurisdiction herein is proper. 3. The rules and requirements contained , in Respondent's "Employee Handbook" effective February 1948, revised November 1960, pertaining to solicitation, distribution, and petitioning by Respondent's employee, improperly and unlawfully restrict (a) solicitation by Respondent's employees in Respondent's plant on said employees' nonwork- ing time and (b) distribution of documents by said employees on their nonworking time in nonwork areas of Respondent's plant. 4. It has not been established by a fair preponde- rance of the substantial credible evidence that Respondent's October 4, 1967, suspension and Oc- tober 17, 1967, termination of employment of James A. Moore, Jr., Charging Party herein, were, as alleged in the complaint herein dated November 18, 1968, as amended at the hearing, in violation of Section 8(a)(3) or (1) of the Act. 5. The unfair labor practice referred to in Con- clusions of Law 3, supra, affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice by maintenance of an im- proper no-solicitation , no-distribution rule in its employee handbook as described , I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action (con- sisting of the abrogation thereof and the posting of the usual notice to employees) uniformly required in instances involving such violation of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following: s' Cf N L R B v Local Union No 1229, IBEW (Jefferson Standard Broadcasting Co ), 346 U S 464, 474-475, Indiana Gear Works, a Division of the Buehler Corporation v N L R B , 371 F 2d 273 (C A 7), American Art Clay Company, Inc v N LRB, 328 F 2d 88 (CA 7), N L R B v Gibbs Corporation , 284 F 2d 403 (C A 5), N L R B v Illinois Bell Telephone Co , 189 F 2d 124 (C A 7), cert denied 342 U S 885, Joanna Cotton Mills Co v N L R B, 176 F 2d 749, 751-752 (C A 4), Norfolk Conveyor, supra, Continental Manufacturing Corp , 155 NLRB 255, Walls Manufacturing Company, Inc , 137 NLRB 1317, enfd 321 F 2d 753 (C A D C ), cert denied 375 U S 923, cases cited infra, fn 34-35 " Cf N L R B v Allis-Chalmers Mfg Co, 388 U S 175, N L R B v Washington Aluminum Company, 370 U S 9, 17 (concerted activities by employees ordinarily deemed protected unless "unlawful, violent or in breach of contract" or "indefensible "), Atkinson v Sinclair Refining Com- pany, 370 U S 238, 246, N L R B v Tanner Motor Livery, Ltd, 349 F 2d 1, 4-5 (C A 9), N L R B v Illinois Bell Tel Co,supra, Norfolk Conveyor, supra, Arlan's Department Store of Michigan Inc, 133 NLRB 802 Unlike Tanner (supra, Board decision on remand , 166 NLRB 551), such a conclu- sion would not be "offensive to public policy" (id) in view of General Counsel's stipulation that Respondent's actions against the employee here were not for racial reasons Lacking such a compelling public policy ele- ment , no reason is apparent why the contractual grievance -arbitration machinery should not be permitted to function as bargained and agreed See United Steelworkers of America v Warrior & Gulf Navigation Co , 363 U S 574 Additional considerations impelling toward this conclusion are the derogation of union authority and contractual integrity which would otherwise result , Respondent's formally announced intention to hold the Union liable, the contractual rights of more senior leadmen, and Respon- dent's potential contractual liability to them in case of departure by Respondent from the requirement of job assignment by seniority, and General Counsel's refusal to issue a complaint against the Union Cf Tanner, supra, at 4-5 Further unlike Tanner, protected , concerted activity is not here involved 's Cf Vaca v Sipes, 386 U S 171, Port Drum Company, supra , and cases there cited and discussed " Spacious though the Act's cupola be, there is no room under it for every action by an employee in attempted vindication of supposed or even real rights N L R B v Washington Aluminum Company , supra Cf N L R B v Local Union No 1229, Electrical Workers (Jefferson Sandard Broadcasting Co ), supra, N L R B v Blue Bell, Inc , 219 F 2d 796 (C A 5), Farmers Co-Operative Company v N L R B, 208 F 2d 296 (C A 8), Hoover Company v N L R B , 191 F 2d 380 (C A 6), Maryland Drydock Company v N L R B, 183 F 2d 538 (C A 4), Joanna Cotton Mills Co v N L R B , supra, N L R B v Illinois Tool Works, supra, N L R B v Con- denser Corporation of America, 128 F 2d 67, 77 (C A 3), N L R B v Union Manufacturing Company, 124 F 2d 332, 333 (C A 5), Norfolk Conveyor, supra, Norge Division , Borg-Warner Corporation, 155 NLRB 1087, Walls Manufacturing Co , Inc , supra, The Patterson-Sargent Company, 115 NLRB 1627, Harnischfeger Corporation , 9 NLRB 676, 686, quoted with approval in U A W v Wisconsin Employment Relations Board, 336 U S 245, 256, Prosser, Torts 720-739 and 745-756 (2d ed 1955), proviso to Sec 8( b)(4)(B) ("truthfully" advising public) SUNBEAM CORPORATION RECOMMENDED ORDER Respondent Sunbeam Corporation, its officers, agents, successors , and assigns , shall: 1. Forthwith cease and desist from continuing to include or maintain in effect in its employee hand- book or elsewhere or otherwise, or to issue any em- ployee handbook or other written or oral communi- cation, containing any rule or requirement im- properly prohibiting its employees from: (a) engag- ing in solicitation on Respondent's premises at times which are nonworking times of both the employees soliciting and those being solicited; (b) distributing literature in nonworking areas during nonworking time. 2. Take the following affirmative actions neces- sary to effectuate the policies of the Act: (a) Post at its Plant 2 at 5400 West Roosevelt Road, Chicago, Illinois, copies of the attached notice marked "Appendix."37 Copies of said notice, on forms provided by the Regional Director for Re- gion 13, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith."' Insofar as the complaint, dated November 18, 1968, as amended at the hearing, alleges violations of the Act not herein found, said complaint is hereby dismissed. Jl In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the National Labor Relations Board" shall be changed to read "- Posted Pursuant to a Judgment of the United States Court of Appeals En- forcing an Order of the National Labor Relations Board " 965 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL forthwith rescind the rules in our "Employees Handbook" relating to solicita- tion, distribution, and petitioning, to the extent that they improperly restrict our employees from soliciting in our plant on nonworking time ; and to the extent that they unlawfully prohibit distribution of literature in our plant on nonworking time in nonworking areas. SUNBEAM CORPORATION (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive 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, 219 South Dearborn Street, Room 881, Chicago, Illinois 60604, Telephone 312-353-7572. "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith "