Cooper Tire & Rubber Co.

COOPER TIRE & RUBBER CO Cooper Tire & Rubber Company and Dennis Smith and James M. Oats. Case 26-CA-3509 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On May 20, 1970, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of those allegations. There- after, Respondent filed exceptions to the Trial Examin- er's Decision and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief and Respondent filed an answering brief to the General Counsel's cross-exceptions.' Pursuant to the provision of Section 3(b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 here- by affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Cooper Tire & Rubber Company, ' Respondent has also requested oral argument before the Board Since it appears that the record and the briefs adequately present the positions of the parties , the request is hereby denied ' The Respondent's exceptions are principally directed to the credibility findings of the Trial Examiner It is the Board 's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 , enfd 188 F 2d 362 (C A 3) We find insufficient basis for disturbing the Trial Examiner 's credibility findings in this case 233 Texarkana, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: This matter was heard at Texarkana, Arkansas, on February 24 and 25, 1970, upon allegations in the complaint issued December 4, 1969, as amended at the hearing (based upon a charge filed on October 27, 1969), alleging that the above-named Respondent engaged in conduct in violation of Section 8(a)(1) and (3) of the Act by the promulgation, maintenance, and enforcement of a certain rule prohibiting the distribution of handbills in Respondent's plant, by interrogating employ- ees about signing a certain petition, and by suspending Dennis Smith and James M. Oats from work for four days for their activities in connection with that petition. Respondent's answer, as amended, admits allegations of the complaint sufficient to support the assertion of jurisdic- tion under current standards of the Board, and to support a finding that United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Local No 752, herein called the Union, is a labor organization within the meaning of the Act. The answer denies the commission of any unfair labor practices. Upon the entire record' in this case, from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following. FINDINGS AND CONCLUSIONS2 1. THE ISSUES James M. Oats and Dennis Smith were suspended from employment on August 22, 1969, until August 28, 1969, for their activities in connection with a petition reading: ' General Counsel's motion to correct the record in certain respects to which no opposition has been filed, has been carefully considered, and is hereby granted In a certain number of instances in which testimony is quoted herein minor corrections have been made and punctuation added After the close of the hearing, Respondent filed a motion, later amended, to admit as additional evidence certain timecards of employee James Thurston McGuire, and information therefrom General Counsel filed motions opposing the Respondent's requests Since there is no showing of any reason why these matters (which are submitted, apparently, solely on the issue of credibility of General Counsel's witnesses, and not as substantive proof) could not have been adduced when McGuire was a witness, Respondent's motion is denied, and the proffered evidence is rejected. To preserve the documents for the record, however, they have been marked and are received as follows Motion to Admit Additional Evidence as TX Exh 1, General Counsel's Opposition to Respondent's Motion as TX Exh 2, Amended Motion to Admit Additional Evidence and Affidavit in Support as TX Exh 3, and Opposition to Amended Motion as TX Exh 4 ' Respondent submitted 18 proposed findings of fact in its brief These are accepted only insofar as they are consistent with the findings made herein Specific reference to certain of these proposed findings is made hereinafter 185 NLRB No. 48 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "We the people of Local 752 Feel that The union officals [sic] Are Not Doing There [sic] Job." The General Counsel contends that Oats and Smith were engaged in protected concerted activities in preparing and securing signatures to this petition . It is further contended that Respondent, in suspending Oats and Smith , were acting, in part, in enforcement of a work rule appearing in Respondent's employee handbook , which rule General Counsel contends is itself in violation of the Act. This work rule reads: "The distribution of handbills within the plant is prohibit- ed." I he General Counsel further contends that certain interro- gation of Oats, Smith , and other signers of the petition by Thomas J. McConnell , manager of industrial relations, and by Earl Whisenhunt, personnel manager, at Respond- ent's Texarkana facility, also violated the Act. Respondent contends that the work rule quoted above does not violate the Act, and though maintained during the period in issue, was not enforced , and, in any event, was not a factor in the suspension of Oats and Smith. It is asserted that Oats circulated the petition set forth above between 7 a.m. (official starting time for the shift) and 10:30 a m . (beginning of a morning break or lunch period) and secured the signatures of four employees (Smith, McGuire, Jeter, and Parker) during that time, while those employees were at their work stations, and also secured the signatures of two employees (Coker and Blankenship) while they were on "a paid break," and one employee (Laney) while he was on "paid relief," while that of another employee, Harmon , was obtained during an unpaid lunch period. (Proposed Findings of Fact 1 and 2 ) It is further asserted that McConnell suspended Oats and Smith , pending further investigation , "for violation of Article I, Section B of the contract by circulating a petition derogatory to the union leadership of company property and general work rules by circulating a petition on paid time " (Proposed Finding 9), which, it is stated, was affirmed to Smith and Oats at the time of their suspension , and to the Union in writing thereafter. (Proposed Finding 11.) Article I, section b, of the collective-bargaining agreement between the Union and Respondent , referred to above, reads as follows: Any employee of the Company who violates any provi- sion of this Agreement or who acts in a manner not in accord with the expressed purpose of this Con- tract, which is to promote cooperation and harmony with respect to the mutual well -being of both parties, will be subject to disciplinary action The Company will notify the Union in writing of any disciplinary action taken against Bargaining Unit employees. Respondent contends that it was justified in its action and was not in violation of the Act in suspending Smith and Oats in the circumstances; that, in any event, the Union and the Respondent negotiated a settlement of the matter within the procedures of the contract , and the Board should not assert jurisdiction, that it did not engage in unlawful interrogation of its employees ; and that it did not violate the Act by maintaining the work rule set out above. II. THE FACTS A. Preliminary The Union has represented the production and mainte- nance employees at Respondent's Texarkana, Arkansas, plant since the latter part of 1964, and the parties have had collective-bargaining agreements covering that unit since that time. There is no evidence of any antiunion animosity on the part of Respondent. According to the testimony of Robert McClendon , presi- dent of the Union at the time of the suspension of Smith and Oats, there had been two petitions circulated in the bargaining unit prior to August 22, 1969 (all dates herein- after are in 1969, unless otherwise noted), which attacked the Union leadership . These occurred after Smith resigned as secretary of the Union (in June or July). McClendon obtained one of these from employee McGuire, who told McClendon at the time that Smith was responsible for it. However, no other evidence indicates that Smith was responsible for that action . McClendon told Smith at the time that if this occurred again he intended to take the matter to Respondent . Smith denies responsibility for any prior petition . No attempt was made to establish responsibili- ty for the second petition . Respondent was apparently una- ware of these matters at the time they occurred B The August 22 Petition Dennis Smith testified that on the evening prior to August 22, he prepared the petition involved in this matter (quoted above in section I of this decision), and the following morning gave it to James Oats before work in the parking lot adjacent to the plant about 6:30 a .m. Smith states that he signed the petition 'before he clocked in at 6.36 that morning. Oats testified that he took the petition from Smith and carried it into the plant lunchroom, where he signed it himself, and secured the signatures of McGuire, Jeter, Parker, Coker, and Blankenship before working hours that morning. This testimony was corroborated by Jeter, Parker, and McGuire, the latter called as a witness by Respondent Blankenship, who was also called as a witness by Respondent , testified that he and Coker signed the petition in the lunchroom during a paid morning break, which began at 10:30 a.m. Respondent argues that none of these witnesses , except Blankenship, were telling the truth, but in fact signed the petition for Oats during work at their work stations. It is contended that this was possible because Oats has considerable freedom of movement in the area in which most of these employees work. In support of its contention that the employees did not testify truthfully, Respondent points to the following: (1) Although Smith's testimony indicates that he was the first to sign, his name is third on the list' (2) From the time ' The petition was written on a piece of yellow lined paper As received in evidence it contains nine names , written one below the other with a line drawn in ink between the seventh and eighth names A 10th name is scratched out The order of the names from top to bottom is James M Oats, James McGuire , D C Smith, R L Jeter, B R Parker, Dennis Coker, M Blankenship, J L Laney, W L Harmon COOPER TIRE & RUBBER CO 235 that McGuire and others clocked in that morning, Respond- ent argues that it strains credibility that these employees could have signed the petition in the order indicated before 7 a m. and still get to work on time. Critical to this argument is the assumption that McGuire, who clocked in that morning at 6.54 am, signed the petition after he clocked in, and therefore Jeter, Parker, Coker, and Blankenship, (and possibly Smith), whose names appear under that of McGuire could not have signed and gotten to work by 7 o'clock ° However, while the record shows that most of the employees normally clock in before going to the lunchroom in the morning before work, the practice is clearly not universal or uniformly followed by the employ- ees. In particular, there is no evidence to show that McGuire followed such a practice, or in fact clocked in prior to going to the lunchroom on August 22. There is the further possibility that some of the employees who General Counsel asserts signed the petition before work that morning might not have been at their work stations at the stroke of seven that morning.' In further support of the argument that the petition must have been signed at the employees' work stations, Respondent points to the evidence that Jeter, Coker, Blank- enship, and Parker (but not McGuire), in apparent apprehen- sion of retaliation by Respondent, agreed among themselves that they would, and they did, tell Respondent that they signed the petition on the parking lot before coming in to work, when questioned about this after Smith and Oats were suspended on August 22. It is indicated that those asked even told the same story to Respondent's counsel when questioned the day before the hearing began in this matter Finally, Respondent adverts to the testimony of Roger Moore, present president of the Union who was then division chairman of the Union, who testified that he was in the plant lunchroom on the morning of August 22, from 6.30 to 6 57, and that he did not recall seeing either Oats or Smith there at that time. Moore agreed, however, that it would have been possible for Smith or Oats to have been in the lunchroom, without his seeing them. This evidence has been carefully considered, together with the record as a whole, and I find it far from convincing that the testimony of these employee witnesses was fabricat- ed. None of them, except Moore, Smith and Oats heard the testimony of others before testifying himself None gave the impression of deliberate falsehood at the time of testifying, and, in fact, the general impression was that those who had told Respondent that the petition had been ' The record shows that Jeter clocked in at 6 33, Blankenship at 6 51, and Parker at 6 57 that morning It is not shown when Coker clocked in Parker, who stated that he always went into the plant before he clocked in, testified that he signed the petition "right at seven o'clock " Parker states Oats and Smith were present Respondent asserts that this raises a conflict with Smith who testified that he was not present when McGuire signed the petition ' As to this, Respondent's brief asserts that "Respondent does not intend to make the argument to the Trial Examiner that these men engaged in union activity on company time by merely a few minutes as their own testimony would indicate," but rather insists that the entire testimony of all of them on this point was "fabricated" (Br pp 8- 9) signed elsewhere than in the lunchroom had abandoned that position at the hearing because of the necessity to tell the truth under oath. While there are some variances in the evidence (whether Smith was in the lunchroom on August 22 as Parker states or not as Smith indicates; whether Smith signed the petition first but on the third line, or whether he signed third; whether Blankenship and Coker signed before work in the lunchroom or during a paid break in the lunchroom), these do not mount to the status of proof that the petition was signed at the employees' work stations, a fact of which no witness asserts direct knowledge. It is further considered unnecessary to resolve the credibility issues involved in these variances since, in any event, they establish that the employees involved signed the petition in the lunchroom on nonwork time There is no issue but that Laney signed the petition in the lunchroom when he was on a paid lunch break, during which he was not expected to perform work, or that Harmon signed in the lunchroom during an unpaid break. Though Blankenship testified otherwise it is indicated that Oats, during the 10:30 morning break, was on an unpaid lunch period. While in the lunchroom, apparently about the time that Harmon signed the petition, Shop Steward Barnes secured it from Oats by asking to sign the paper, and took it to Union President McClendon who was in the lunchroom McClendon, after scratching Barnes' name off the paper at the latter's request, took the document to Industrial Relations Manager McConnell's office C. The Suspension of Oats and Smith According to McConnell, McClendon brought the petition to him about 10:30 in the morning, and told him that "James Oats was distributing it in the factory and that he didn't think it was right ... he said previous petitions had been in the factory and he was getting tired of them always going around, but he did not specifically request any action be taken." McConnell testified that McClendon told him that he had obtained the petition in the lunchroom from Barnes, who had signed it and had requested that his name be scratched off McClendon, in his testimony, stated merely that he took the petition to McConnell, that the latter asked "who had it and who was carrying it," to which McClendon replied "that John Barnes had gotten it from Jimmy Oats," after which there was no further discussion of the petition, that then McConnell sent word to Oats not to go back to work, but to remain in the lunchroom until McConnell sent for him. Later that day, Oats attended a meeting in McConnell's office, at which union representatives McClendon, Pierce, Barnes, and Jeter (who was a shop steward) were present, in addition to McConnell and Respondent representative Allen. Oats, Jeter, McConnell, and McClendon testified concerning this meeting The accounts are in conflict and will be considered in material part below. Oats testified that he was not called into the office until shortly before 1 o'clock, at which time the following occurred: "Mr. McConnell told me that I had violated company work rules and he showed them both to me 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and read them to me and then he asked me was that the petition that I had circulated in the plant. I told him that I had the petition in the plant but I had not circulated it at any work station, that I had it in the lunchroom but I didn't circulate it through the plant. Then he asked if I drew it up and had it all to myself and I said not, that Mr. Dennis Smith had drawed it up and I was circulating it." On cross-examination, Oats asserted that he told McCon- nell that he had no help in circulating the petition, and that though he had the petition on his person in the factory, he did not distribute it in the factory, but only in the lunchroom and before work. Oats - further stated that he told McConnell that all of the signatures but the last two had been obtained before working hours, and that the last two (and the one that had been scratched off) had been signed in the lunchroom. According to Oats, McConnell drew the line on the paper which separates the first seven names from the last two. Oats specifically asserted that McConnell, during this meet- ing showed him the handbook and pointed out the rule on page 15 prohibiting the distribution of handbills in the plant as the work rule which Oats had violated. Upon prodding by McConnell, Oats agreed at this meeting that his dissatisfaction with the Union stemmed in part, at least, from the unsuccessful handling of one of his grievances, but that other employees also felt that they weren't being represented fairly, or properly, and "wanted to try to get some better representation " McConnell testified first with respect to these matters as an adverse witness for General Counsel and again, later, as a witness for Respondent. A synthesis of all his testimony shows the following. McConnell states that when Oats came to his office on this occasion, he "advised Mr. Oats that I had this petition in my possession and it has been stated to me that he was circulating it out in the factory; he advised me yes [he] was." McConnell questioned Oats closely as to his purpose and motivation, to which, McCon- nell asserted, Oats replied that he had some problems, including a desire to secure "piecework jobs," and wanted to "get some help," that he didn't think he was "getting the representation I think I should." McConnell stated that he advised Oats that assignment of this work was a management function, and not a matter for the Union, and it appears suggested to Oats that Oats' problem was his failure to win a grievance which the Union had not taken to arbitration, and indicated that Oats did not accept this "final decision," to which Oats said that this was the start of his problems, that he could abide by grievance decisions which he thought dust, but as to those he thought unjust would "go as far as I can." McConnell testified, in his original testimony, that he then said, "well, we feel you have taken this petition in the factory on our time, it is not correct and you are in violation of Article I, Paragraph b which I read to him at that time and since you are reported to us doing it on [company] time and being paid for it, we think you are violating a general work rule also . . . if you do things like this, to be safe, the best thing to do it [on] public property, on your own time. Then I asked him, `Did you have any help in preparing this petition?' and he said that Dennis Smith wrote it; so I told him that until I complete our investigation, I was suspending [him]." Under specific examination by the General Counsel, McConnell denied that he ever mentioned the "handbill" rule quoted above to Oats, Smith, or the Union in respect to this matter, or that Oats, in response to a question from McConnell, told the latter that the first seven signatures were obtained before working hours McConnell also denied drawing the line on the paper between the seventh and eighth names. During the course of his testimony for Respondent, upon being specifically asked whether anything else was said with regard to the petition later in the meeting, McConnell recalled that Union representative Barnes had made a "state- ment to Mr. Oats that "Oats, you know you were doing it in the factory, so why don't you admit it?," and that thereafter, union representative Pierce had said, "Jimmy, you know that you were doing it and it is a clear cut violation of the agreement, so why don't you admit it?" When McConnell testified that he didn't believe that Oats answered Pierce, and `my memory is not clear as to exactly what he said to [Barnes]," counsel then suggested to McCon- nell that Oats "said to you, `Would I turn around again and pull a petition inside the factory again; no sir, I do not.' " McConnell agreed.' McClendon, who attended the meeting as president of the Union, testified that Oats admitted that he had been circulating the petition, but did not say where. After his memory was refreshed, from a document prepared by Respondent, McClendon recalled that Barnes had accused Oats of circulating the petition "in the plant at the work stations," which he asked Oats to admit According to McClendon, Oats did not admit this, agreeing only that he had circulated the petition. McClendon also recalled that McConnell told Oats that he was being suspended for violation of the collective bargaining agreement, asserting that McConnell "could have" told Oats that he had violated the "handbill" rule in the employees' handbook, but, McClendon stated, "I don't remember " Jeter testified that McConnell told Oats that he was being suspended for violating the current contract and the rule prohibiting distribution of handbills within the plant. From the above, and on the basis of the record in this case, it is clear that prior to suspending Oats, McConnell had no evidence that Oats had distributed the petition in areas of the plant other than the lunchroom, and, as discussed hereinafter, did not secure any such evidence thereafter. Nor did Oats admit any such activity. To the extent that the testimony of McConnell and McClendon is inconsistent with these findings, it is not credited. Indeed, in spite of the contrary inference Respondent would draw from McConnell's account of the meeting, his testimony Oats, though vigorously denying that he had at this meeting admitted securing signatures at work stations or in the factory, agreed, on cross- examination, at one point that he "possibly could have" made a somewhat similar answer to Barnes Immediately prior, Oats agreed that he "probably said," in connection with being returned to work, that "if [he] did it over again, [he] would not do it in the same manner " COOPER TIRE & RUBBER CO 237 as a whole makes plain that the suspension of Oats was based on his activities in the lunchroom, and the fact that some of the employees were on a paid break at the time. Thus, McConnell felt it sufficient that Oats had distributed the petition "in the factory," and made, no attempt during the meeting to ascertain from Oats whether such activity occurred in work areas. McConnell testified that it was his position that it was a "violation of the company rules" for an employee to circulate a petition "anywhere within the physical plant of [Respondent], wheth- er it be in a lunchroom or . . in a work area," at a time "he is receiving pay from the company." McConnell agreed "that is what [he] was referring to" when he spoke of activity occurring "out in the factory." He further agreed that he did not "ever receive any evidence that the petition was signed in work areas."' As set forth above, the testimony is also in conflict as to whether, in this meeting, McConnell told Oats that his activity was in violation of the rule against distribution of handbills in the plant. McConnell's testimony that he did not specifically mention this rule, but rather relied upon unspecified "general work rules," was not persuasive, particularly his contention, when pressed on cross-examina- tion, that though unpublished, such "general work rules" could be gleaned from job descriptions maintained by Respondent. McConnell was further notably evasive when asked specifically whether the suspension of Oats and Smith was not, in fact, based on the handbill prohibition rule. Further, McConnell testified that when a Board investigator asked him, in connection with the "general work rules" assertedly violated by Oats and Smith, what rules McConnell considered "may apply," McConnell himself advised the investigator that "We have one on handbills and we have one on getting prior notice to post notices on our plant bulletin board." It is thus found that whether or not specific reference to the rule was made in the meeting with Oats (and I am persuaded that it was), McConnell relied in substantial part upon this rule in suspending Oats.' After Oats was suspended, Smith was called into McCon- nell's office, and upon Smith's admission that he had pre- pared the petition, McConnell advised Smith that he was as much responsible for the petition as Oats and suspended him also. McConnell made no effort to ascertain where or when Smith had prepared or signed the petition. D. Respondent 's Investigation of the Petition After the suspension of Oats and Smith, McConnell ascertained from employees Laney and Harmon that they had signed the petition in the lunchroom, the former on a paid lunchbreak, the latter on an unpaid break. McConnell requested Whisenhunt, the plant personnel manager, to ascertain where and when the other employees had signed the petition. Whisenhunt interviewed employees Jeter, Parker, Coker, and Blankenship. There is a dispute as to whether this occurred on Friday, August 22, as claimed by witnesses for the General Counsel, or the follow- ing Monday or Tuesday, as claimed by McConnell and Whisenhunt. However, the exact date is not material. It is not disputed that Whisenhunt told these employees that he was "investigating the situation to determine what the real facts were in regard to Mr Smith and Mr. Oats, that this was not a situation where they would be in jeopardy in their jobs . . . disciplinary action was not contemplated; it was dust an investigative inquiry " Jeter, Parker and Blankenship told Whisenhunt that they signed on the parking lot before work; Coker apparently told Whisenhunt that he had signed the petition off Respondents' property. According to McConnell, Whisenhunt reported that the employees whose names appear above the line on the paper (which admittedly had then been drawn) had signed on the parking lot or on breaktime, before lunch. It is found that Whisenhunt reported to McConnell the details of his investigation as set forth above. On August 25, 1969, Respondent advised the Union by letter that Smith and Oats had been suspended "for an infraction of general work rules and violation of Article I, paragraph b of the . Agreement." ' McConnell testified that Oats was suspended for distributing the petition "on time we were paying him for," and even "if he was doing it on break time, he was doing it on time we were paying him for" McConnell was of the opinion, manifestly, that Oats had no right to engage in such activity on paid break time, as he testified he later told a Board investigator ' This conclusion has been reached independently of McConnell's affidavit given to the investigator for the Board, which also strongly supports this finding McConnell testified that the statements in the affidavit were true, though it did not contain his complete conversation with the investigator in the affidavit McConnell indicated, indeed, in connection with the bulletin notice posting rule, that he considered that the circulation of "any type of petition" on Respondent's property "during a work shift," either "before they started to work or on break time," to be prohibited unless prior approval was secured from Respondent McConnell testified that this statement had no reference to Oat's action, but this does not seem consistent with his testimony referred to in the text above At the hearing, Respondent indicated that this affidavit was given in course of settlement of the issues The record is clear, however, that the statement was given in the course of investigation of the charge against Respondent and before complaint was issued Nor is it material that Respondent's counsel was not present when the affidavit was taken See Crown Imports Co, Inc 163 NLRB 24, Cf Singer Company, 176 NLRB No 149 E. Reinstatement of Smith and Oats; Processing of their Grievance Smith and Oats were reinstated on August 28 and filed a grievance on that date asserting that they had been "unjustly suspended August 23, 25, 26, 27, 1969," and requested reinstatement and pay for time lost. The grievance was processed through the third step in the grievance procedure, during which time Respondent offered to pay Smith and Oats for two days of their suspension. This was rejected by Oats and Smith. In accordance with contract requirements, Respondent notified the Union at the third step of the grievance proce- dure, in writing, of its position with respect to the grievance, as follows: As per the company's letter of August 25, 1969, Mr. Oats and Mr. Smith were suspended August 22, 1969, for an infraction of general work rules and a violation of Article I, paragraph b. of the current Company- Union Agreement. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specifically, they were actively distributing a petition on company property derogatory to the current Local Union Officials. This action was investigated by the company upon advice from Local Union Officials that this action was being done on company property Upon investigation, Mr Oats and Mr. Smith admitted to being engaged in this activity. It is the opinion of this company that any employee engaging in such activity is contributing to the disrup- tion of the contractual procedures set forth to solve problems by casting doubt on the ability of the elected Union Officials with whom the company must work for the well being of both parties. This action hampers the contractual responsibilities Their action was not in accord with the expressed purpose of our contract in that it was not designed to promote cooperation between the parties. The discipline was just and reasonable. Thereafter, at a meeting of the union membership, it was voted not to take this grievance to arbitration It is undisputed that Roger Moore, then president of the Union, approached Smith and Oats offering to continue to seek a settlement from Respondent. Moore states that Smith said he would appreciate anything Moore could do for him. Smith asserts he doesn't remember. On the other hand, Oats states that he told Moore he would not take less than full restitution. Moore did not testify to Oats' response. Moore secured a written agreement from McConnell to pay the two days' pay previously offered. According to Moore, when he presented the agreement to Smith and Oats, they refused to sign, Oats stating that their "labor man" had told them not to Smith and Oats deny that the agreement was presented to them by Moore. It appears that the agreement was not carried out. III ANALYSIS AND CONCLUSIONS It has been long settled that employees on nonwork time (though paid) may solicit others to engage in or refrain from union activity, or other activities protected under Section 7 of the Act, though such solicitation occurs on company property. It is further clear that the distribution of literature relating to such purposes on plant premises, but in nonwork areas and on nonwork time is a protected activity. A no-solicitation, no-distribution rule broad enough to restrain employees in the exercise of these rights, even if originally promulgated for another purpose, violates the Act, in the absence of special circumstances justifying such a rule. See Stoddard-Quirk Manufacturing Co., 138 NLRB 615; see also, Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8), and cases cited; N.L.R.B. v American Coach Company, 379 F.2d 699 (C.A. 10)' It follows that ' Respondent cites N.L.R B v Shawnee Industries, Inc., 333 F 2d 432 (C A 10) in support of its argument that the promulgation of an over-broad no-solicitation, no-distnbution rule, apart from its applica- tion, does not constitute a restraint upon the exercise of employee rights under the Act This is rejected for the reasons set forth in Jas H Matthews & Co v NL R B, supra, see also NL R B v Mid-States Metal Products, Inc., 403 F 2d 702 (C A 5) Respondent's rule prohibiting the distribution of handbills on Respondent's property, without distinction as to time or place, with no special justification for such rule shown, and particularly in light of Respondent's interpretation and application of such rule, constitutes interference, restraint, and coercion of employees in the exercise of their rights under the Act, and Respondent, by promulgating and maintaining such rule has engaged and is engaging in conduct in violation of Section 8(a)(l) of the Act. It is also quite clear that, in the absence of special circumstances, an employer may not prohibit or restrain employees from engaging in activities on nonwork time (and in nonwork area, if distribution of literature is involved) designed to effect a change in the representation of the employees. N.L.R.B. v. Glenn Berry Manufacturers, Inc., 422 F.2d 748 (C.A. 10); N.L.R.B. v. E. W. Buschman Co., 380 F.2d 255 (C.A. 6). The Respondent argues, howev- er, in respect to the suspension of Smith and Oats for such activity, that it was merely acting in enforcement of the provision of the contract between the Union and Respondent stating that "Any employee who violates any provision of this Agreement or who acts in a manner not in accord with the expressed purpose of this Contract, which is to promote cooperation and harmony with respect to the mutual well being of both parties will be subject to disciplinary action " Respondent contends that any right of the employees to engage in antiunion activities on Respondent's property was thereby waived by the Union, which is their representative." Respondent asserts that to permit the circulation "in the factory itself on working time of a petition derogatory to the current union leadership would have undermined the confidence of the Union in Respondent's good faith; and . . . would inevitably have led to a deterioration of the collective bargaining process between Respondent and the Union." (Br. p. 15) There are a number of difficulties with this contention, not the least of which, as has been noted, is the fact that the activity involved, although occurring on paid time as to some employees, was engaged in almost entirely, if not altogether, on nonwork time, and completely in nonwork areas. To the extent that Oats' activity before work may have infringed on working time, this was minimal, see N.L.R.B. v. Glenn Berry, supra, and is not asserted herein by Respondent as justifying Respondent's action. Indeed, so far as the record shows, McConnell suspended Smith 10 There has been considerable litigation as to whether a union can contract with an employer to prohibit employee activities on company designed to change the employees' representation, even though carried on at nonwork time and at proper places The Board has held that such prohibition violates the Act The Courts have split, the Fifth and Tenth Circuit Courts of Appeal enforcing the Board's orders, while the Sixth and Seventh Courts of Appeal have denied enforcement See NL.R B v Mid-States Metal Products, Inc, supra, NL R B v Glenn Berry Mfrs, Inc, supra. Armco Steel Corp v NLR B, 344 F 2d 621 (C A 6), General Motors Corp v N.LR.B, 345 F 2d 516 (C A 6), NLRB v Gale Products, 337 F 2d 390 (C A 7) In each of these cases, however, (except the Glenn Berry case) the no-solicitation clause involved was definite and precise Respondent concedes that the contract provision in the present matter "is substantively different in purpose and effect " (Br p 15) On the other hand, there is language in the bargaining agreement in the Glenn Berry case very similar to that in the instant matter COOPER TIRE & RUBBER CO 239 without any evidence that he had engaged in any activity on Respondent's property. Moreover, it is far from certain that the contract provision relied upon may properly be read as a proper prior restraint on the right of employees to criticize their union leadership and petition for its change while the employees are on Respondent's property. Even if such immunization of the Union from criticism were permissible, a clearer and more precise prohibition would be required to negate so fundamen- tal a right of employees As the Board and the courts have frequently held, a waiver of statutory rights will not be lightly inferred, "there must be a clear and unmistaka- ble showing that the waiver occurred " See, e.g., J. C. Penny Company, 161 NLRB 69, and case cited. We are not here concerned with whether Oats and Smith were right or wrong in their attack on the union leadership. While employees in a bargaining unit, like members of any democratic institution, may be required to accept the representation selected by the majority even against their will, fundamental to the rights of any such minority in a democratic society (including dissidents in a union) is the right to work for a change in their representation, in an orderly manner and at times and places reasonable for such activities. Without such right representative democ- racy can hardly survive. The activities of Smith and Oats were carried on in an orderly manner and at times and places permissible for such conduct. There is no showing that their activities interfered with Respondent's operations. On the basis of the above, and the record as a whole, it is found that Smith and Oats, in preparing and soliciting signatures to a petition seeking changes in the union leader- ship representing the employees, were engaged in activities protected by the Act, and that Respondent, without justifica- tion, suspended Smith and Oats solely because of their protected activities, thereby engaging in conduct in violation of Section 8(a)(1) of the Act Since Respondent's discrimina- tion against them was based upon their union activity, Respondent also thereby violated Section 8(a)(3) of the Act. See N.L.R.B. v Glenn Berry, supra." In finding that Respondent violated the Act by suspending Smith and Oats, I have carefully considered Respondent's contention that the Board should decline jurisdiction over this matter, on the ground that "the dispute herein was settled in accordance with the grievance procedure estab- lished by the collective bargaining agreement," and have concluded, upon the entire record, that there is no proper basis for deference by the Board in this case to the operation of the grievance procedure. Quite apart from very substantial questions as to whether the conduct of Smith and Oats actually violated the Agreement, it is manifest that the Union and the Respondent at no time, in the processing of the grievance, ever came to grips with the issue here " Respondent's discrimination against Smith and Oats clearly tended to encourage employees to "join, retain membership, or stay in good standing" in the Union in violation of Sec 8(a)(3) of the Act Radio Officers' Union v NLR B, 347 U S 17, 39-42 While the complaint alleges only that Respondent's action "discouraged" membership, it is not considered necessary to discuss the distinction here, since Respondent's actions' against Smith and Oats and its defense of those actions were fully litigated, and may properly be decided here Cf NL R B v Thompson Transport Company, Inc., 421 F 2d 154 (C A 10) presented : the statutory right of the two employees to engage in the activities for which they were disciplined Nor do I think deference is warranted by the Union's acquiescence in Respondent's offer of settlement, which Smith and Oats had previously rejected and continued to reject, and which was never effectuated. General Counsel, however, makes no convincing case that Respondent violated the Act by its interrogation of employees concerning the activities of Smith and Oats in the circumstances presented here. Respondent was clearly within its rights in investigating the complaint made by the Union, with proper safeguards to assure the employees that there would be no reprisals . These safeguards appear to have been carefully followed . There is no claim that the employees were denied proper representation at these interviews or that the circumstances were otherwise improp- er. It will be recommended that the allegations that Respond- ent violated the Act by interrogation of employees, on or about August 22, be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act, which at all times material has been and continues to be the exclusive representative of Respondent's employees in an appropriate unit within the meaning of Sections 9(a) and (b) of the Act. 3. By the acts and conduct found herein to be unfair labor practices in violation of the Act, Respondent has engaged and is engaging in violations of Section 8(a)(1) and (3) of the Act. 4. Respondent did not engage in a violation of the Act by interrogation of employees on or about August 22, 1969, as alleged in the complaint. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent make whole Dennis Smith and James Oats for any loss of pay and restore to them any other rights or benefits they may have suffered by reason of their suspension from work from August 22, 1969, to August 28, 1969, with interest thereon at the rate of six percent per annum, and that any record of discipline or suspension of these employees for circulation and solicitation of signatures for a petition in respect to the Union on August 22, 1969, be removed from Respondent's records. It will also be recommended that Respondent rescind or modify its rule prohibiting distribution of handbills on company property to make clear the right of employees to engage in union activities on nonwork time and to distribute union literature on nonwork time in nonwork areas. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in this case, it is recommended that Respondent, Cooper Tire and Rubber Company, Texarkana, Arkansas, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Suspending or otherwise discriminating against employees for engaging in activities involving their right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, or because they engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or because they refrain from any or all such activities, except to the extent that any such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act. (b) Promulgating, maintaining, or enforcing rules prohibit- ing solicitation of employees on its plant premises on non- work time, or distribution of literature on its plant premises on nonwork time and in nonwork areas, by employees for the purposes protected by Section 7 of the Act. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2 Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Make whole Dennis Smith and James Oats for any loss of pay suffered and restore to them any other rights or benefits they may have lost by reason of their suspension from work from August 22 to 28, 1969, with interest thereon at the rate of six percent per annum. (b) Remove from Respondent's records any records of the discipline or suspension of Dennis Smith and James Oats for circulation of and solicitation of signatures for a petition in respect to the Union on August 22, 1969. (c) Rescind or modify its rule prohibiting distribution of handbills on company property as set forth in section V of this Decision. (d) Preserve and make available to the Board or its agents, upon request, the records necessary to determine the effectuation of this order. (e) Post at its plant in Texarkana, Arkansas copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days " In the event no exceptions be filed as provided by Sec 102 46 of the Rules and Regulations of the Board, the findings, conclusions, recommendations, and Recommended Order herein, shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order be 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 enforcing an Order of the National Labor Relations Board " thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith." IT IS FURTHER RECOMMENDED that allegations of unfair labor practices in the complaint except for the unfair labor practices found herein be dismissed " In the event that this Recommended Order he adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend you from work or otherwise discriminate against you because you engage in union activities or other concerted activities relating to your working conditions on company property on nonwork time, or distribute written material for those purposes on company property on nonwork time and in nonwork areas. WE WILL NOT make or enforce any rule which will forbid you from engaging in this kind of activity, and we will rescind any rules presently in effect which forbid these activities. WE WILL NOT engage in any conduct of a like or similar character which interferes with, restrains or coerces you in the exercise of rights guaranteed you in Section 7 of the National Labor Relations Act. WE WILL make Dennis Smith and James Oats whole for any loss of pay and restore to them any rights or benefits which they lost as a result of their suspension from work from August 22 to 28, 1969 COOPER TIRE & RUBBER COMPANY (Employer) Dated By (Representative) (Title) and must not be defaced by This is an official notice anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 3507 Federal Building, 700 West Capital Avenue, Little Rock, Arkansas 72201, Telephone 501-372-5512.