Cascade Corp.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cascade Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 9-CA-5461-1-2 October 21, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 9, 1970, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter the Respondent filed exceptions to the Trial Examiner's Decision accompanied by a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Cascade Corporation, Springfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: This case was tried in Springfield, Ohio, on April 15, 1970, on a complaint issued against Cascade Corporation, Respondent, on February 4, 1970, pursuant to charges filed on December 22 and 29, 1969,' by International Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, UAW (the Union or UAW). The complaint alleges ' Except where otherwise indicated, all dates referred to herein are in 1969 2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, unlawful maintenance and enforcement of a rule restricting distribution of union literature by Respondent's employees, in violation of Section 8(a)(1) and (3) of the Act.2 Upon the entire record, observation of the demeanor of the witnesses, and consideration of the oral argument on behalf of Respondent and briefs on behalf of Respondent and the General Counsel, the Trial Examiner makes the following: FINDINGS OF FACTS 1. PRELIMINARY FINDINGS A. Respondent, an Oregon corporation, is engaged in the manufacture of hydraulic cylinders at its plant in Springfield, Ohio. During the past calendar year, a representative period, Respondent, in the course and conduct of its business, manufactured and shipped goods and products valued in excess of $50 ,000 from inside Ohio directly to points outside Ohio. Respondent is now , and has been at all times material herein, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is, and has been at all times material herein, a labor organization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts On the morning of December 18, employees Jack Whited and Robert King entered the plant at about 6:10 a.m. and proceeded to hand union leaflets to arriving employees until about 6:50 a.m., 10 minutes before the start of the first shift. Approximately 125 first-shift employees arrived during this time. Whited and King were standing about 5 or 6 feet inside the building, next to a railing, about 3 feet high, which runs parallel to the entrance door at a distance of 6 feet.3 The railing is approximately 5 feet long and is joined perpendicularly by a similar railing about 12 feet long. The "L" shaped railing thus marks off an entrance area about 6 feet by 5 feet and an aisle about 3 feet wide and 16 feet long, running along an inner wall which is perpendicular to the outer wall. The timeclock is on this inner wall, about 10 feet from the building entrance. On entering the building, employees normally proceed along the aisle, punch the clock, and then go through a doorway to the right, into the men's locker room. To the left of the entrance hall and railing above described is the shipping and receiving area. The employee entrance is off a loading dock, which extends roughly 12 feet to the left of the employee door. Also on the loading dock, to the left of the employee entrance, is an overhead door which provides access to the shipping and receiving area. To the left of the loading platform are two parallel truck wells, each about 14 feet wide and 52 feet long, with loading ramps at the rear. Spanning the truck wells and ramps is a movable 5-ton overhead crane. 29 U S C Sec 151 et seq ) 3 A diagram of the premises , based on an exhibit in the record, is attached hereto as Appendix A 186 NLRB No. 7 CASCADE CORPORATION Usually trucks are loaded and unloaded while in the truck wells. Rigs are loaded and unloaded from the rear, by the overhead crane, which is operated by one man. Sometimes two men are used in loading or unloading. Material unloaded from rigs is moved toward the inspection area and scales, to the rear of the building. Materials are sometimes stored for relatively short periods of time in the shipping and receiving area inside the overhead door adjacent to the entrance way and railing When the truck wells are occupied, smaller vehicles are sometimes loaded or unloaded at the overhead door on the loading platform. But, at least during the winter season, the overhead door is opened not more than two or three times a week. The shipping and receiving department does not begin work for the day until 8 a.m. On the morning of December 18 there was a truck in one of the truck wells. The rig had arrived during the second or third shift of the previous day and had then been wholly or partially unloaded. Although the evidence is somewhat unclear, it appears that some of the unloaded material was on the floor in back of the well awaiting removal by shipping employees due to arrive at 8 a.m. There is no evidence that any working employees were in proximity to the employee entrance between 6 and 7 a.m. As previously stated, around 6.10 a.m. employees Whited and King started to pass Union leaflets to arriving employees. Shortly thereafter Jack Elberfeld, third-shift foreman, after calling Plant Superintendent Frank D. Warien, ordered Whited and King to leave the building. When the employees refused, the police were called. Two policemen arrived. When Whited and King still refused to leave, the two policemen and Elberfeld stood in the entrance area as Whited and King passed union leaflets to the remaining first-shift employees as they arrived. At about 6:50, their distribution completed, Whited and King clock ed in and went to work. No charges were pressed or arrests made. Later on December 18 Respondent posted on the bulletin board a notice reading in pertinent part as follows: THE SUBJECT OF DISTRIBUTION OF ELECTION LITERATURE HAS AGAIN [4] ARISEN. ALL EMPLOYEES ARE REMINDED OF THE LONG-STANDING COMPANY RULE IN THIS REGARD. 1. ALL EMPLOYEES ARE FREE TO USE THE COMPANY PARKING LOT OR AREAS SURROUNDING THE BUILDING AT ANY TIME FOR THIS PURPOSE. 2. ALL WORKING AREAS INSIDE OF THE BUILDING, BECAUSE OF OBVIOUS HOUSEKEEPING PROBLEMS & PROBLEMS OF MOVEMENT OF PEOPLE & MATERIAL, ARE OFF-LIMITS FOR THE DISTRIBUTION OF ANY LITERATURE. That afternoon Whited and King, accompanied by their chosen union representatives,5 were called to the bulletin board, where Frank D. Warren, plant superintendent, had them read the posted notice and informed them that "any further action on their part would necessitate further reprimand and could lead to termination." On December 19 the Union filed the first charge in the ' Use of the word "again" stems from the fact that the election campaign then in progress was the third in which the employees chose between the UAW and an independent union 5 At the time the employees were still represented by the independent union Apparently Whited and King chose to be accompanied by a union 33 present case and sent a telegram in connection therewith to Respondent The Company countered by posting a responsive memorandum, to which it attached a copy of the Union's telegram. Respondent's memorandum referred to the area in question as "a working area (next to the time clock)." It stated that the foreman had suggested to the distributors that "if they were going to pass out literature, they do it in the parking area ." It continued, in part, as follows: OBVIOUSLY TWO MEN TRYING TO PASS OUT CONTROVERSIAL LITERATURE IN A NARROW AISLE] WITH SOME 130 MEN SCHEDULED TO CLOCK IN WOULD NOT ONLY DELAY MEN'S ACCESS TO WORK BUT VERY POSSIBLY LEAD TO MORE SERIOUS CONSEQUENCES . IN ADDITION, LESS SERIOUS , BUT STILL A PROBLEM IS THE RESULTING LITTERING OF A WORK AREA. The memorandum also stated that Respondent does not have any rule against "soliciting union support during non- working hours" and that employees are "free to engage in union activities during non-working hours on or off company property." Around 3 p.m. on Saturday , December 20, employee Whited, this time accompanied by employee Robert Goodfellow, again stationed himself in the entrance way to the plant He passed to departing employees a handbill reproducing the Union's telegram of the day before to Respondent and proclaiming that "EMPLOYEES HAVE THE RIGHT TO CAMPAIGN FOR OR AGAINST THE UNION OF THEIR CHOICE DURING NON-WORKING HOURS AND ON COMPANY PROPERTY !" Nobody was then working in the shipping and receiving department. A leadman ordered Whited and Goodfellow to leave, but they refused to do so , maintaining that they had the legal right to distribute union literature where they were. They completed their distribution in about 10 minutes. On Monday, December 22, Whited was summoned to the office of personnel supervisor Amen . When Whited acknowledged that he had deliberately violated orders not to distribute in the entrance area of the plant , asserting what he had been advised was his legal right, he was suspended for "insubordination."6 The Union's second charge in this proceeding followed B. Discussion 1. Enforcement of the prohibition There is no disagreement concerning the basic rule that employees have a statutorily protected presumptive right to distribute union literature on nonworking time in nonwork- ing portions of the employer's premises and that the presumption can be overcome only by the employer's affirmatively showing the existence of special circum- stances or conditions which require prohibition or restric- tion of such activity. See Cone Mill Corp., 174 NLRB No. 151, and cases cited in In. 2 thereon. Respondent advances the essentially factual contention steward who had shifted his allegiance to the UAW 6 The suspension was originally imposed for 3 days It was effective for the second 4 hours of work on December 22 and all of December 23 December 24 was a holiday and Whited was paid therefor Thus the actual suspension lasted 1-1/2 days 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the entrance areaway in which it prohibited distribu- tion is a working area. However, the evidence is clear that the entrance way and aisle from the door to the timeclock and thence to the locker room are clearly separated from any working area. That the area in question is marked off from the shipping and receiving area only by a single railing does not indicate an essential continuity of the two areas but rather reflects the fact that the area of actual shipping and receiving operations is sufficiently remote from the entrance passage to obviate the necessity of sturdier barriers between the two areas. Only on infrequent occasions, when the truck wells are occupied, are loading and unloading performed at the portion of the loading dock and plant adjacent to the employee entrance. Only small trucks, with relatively light, small freight, are loaded or unloaded in the shipping and receiving area rather than in the truck wells. All material is loaded and unloaded on and from the back of the trucks, away from the entrance to the building. On the occasions that material is temporarily stored in the portion of the shipping and receiving area adjacent to the employee passage, it is beyond the railing. There was no evidence that material was ever stored in the entrance area or in such manner as to constitute an obstruction or impediment to free movement of employees between the timeclock and the entrance door Respondent suggests that the movable crane and forklift trucks used in the shipping department may create some hazard. However, there was no evidence to support such a conclusion. The crane is separated from the entrance area by the shipping and receiving department, some 25 to 30 feet wide. And loading and unloading operations at the rear of the truck wells are about 60 feet back and 50 to 60 feet to the left of the employee entrance. There was no evidence that forklift trucks ever come near the rail in a manner creating any hazard or threat to arriving and departing employees. Further, the evidence was undisputed that the distribu- tion of literature in the entrance area did not cause employees to tarry and congregate in the entrance way. Indeed, the only suggestion of such a condition came in a conjecture by foreman Elberfeld that "[w]hen they got close to seven [o'clock], then they started to gang up and it was going to cause quite a commotion." (emphasis supplied) Whited and King testified, without contradiction, that there was no backup of employees attempting to enter the building during the distribution on December 18. The only evidence of any possible difficulty concerned some inconvenience to the employees passing the congregation of the two policemen, Foreman Elberfeld and employees King and Whited in the entry way. But King and Whited were able to pass leaflets to all the employees, apparently without incident. To support its position, Respondent relies on Patio Foods v. N.L.R.B., 415 F.2d 1001 (C.A. 5), reversing 165 NLRB 446. Even if the Trial Examiner were free to follow the court's rather than the Board's decision in Patio Foods, it would not be controlling in the present case. In Patio the distribution was being made in the shipping and receiving area. The Trial Examiner, whose decision was adopted by the Board, held, in effect, that the employees were entitled to distribute in that working area because it was also used for employee ingress and egress and because the distribu- tion itself did not actually interfere with any work being performed. In reversing, the court said: .. . an employer's legitimate interest in keeping his employees' work stations free of the disruptive influence of handbilling justified the prohibition of union literature distribution in work areas where employees are, in fact, working. [emphasis supplied.] The court did not hold that employees could be prohibited from distributing in nonworking areas adjacent to working areas. In the present case the area involved was set apart from any work area and the path of the employees' ingress and egress did not traverse any work area. See I U.E Local 806 (SNC Manufacturing Co.,) v. N.L.R.B, 434 F.2d 473, (C.A.D C.), where the court upheld employees' right to distribute union literature in nonworking areas such as passageways. Additionally, in Patio there was evidence that working employees were actually distracted by the disagreement which arose concerning the prohibition of distribution. In the present case no employees were distracted and, so far as appears, no working employees were present to be distracted. Cf. Gustin-Bacon Manufacturing Co., 173 NLRB 332, 336-337. In its brief Respondent adds the further contention that "The distributions were taking place on work time." It may be assumed, as Respondent asserts, that the plant was in operation at the time. But neither the distributors nor the distributees were on working time on either occasion here involved. One cannot reasonably dispute Respondent's statement "that prompt reporting of the next shift is at all times essential to [the plant's] smooth and continuous operation." But there is not the remotest basis for finding that the union distribution on December 18 was actually or potentially interfering with employees' reporting promptly for the first shift, scheduled to start at 7 a.m. Foreman Elberfeld, acting on instructions from Superintendent Warren, apparently recognized the absence of potential for delay when he "suggested" that the distribution operation be moved outside the door. The distribution would hardly be more time consuming outside than inside. And the distribution on December 20 was being made to departing employees, after they had clocked out. On all the evidence, the Trial Examiner finds that the distributions in question were being performed on nonwork time in a nonwork area. As said by the court in Patio Foods, supra To prohibit the distribution by employees of union literature in nonwork areas on nonwork time in the absence of special circumstances has long been recognized to be an unfair labor practice... . Since the prohibition of distribution in the entrance area was unlawful, the threat to discipline employees for a repetition of such conduct was violative of Section 8(a)(1) of the Act. Similarly, the suspension of employee Whited for distributing union literature in disobedience to the unlawful prohibition was violative of Section 8(a)(3). See SNC Manufacturing Co., 174 NLRB No. 31, enfd. in pertinent part, supra CASCADE CORPORATION 35 2. The posted rule The complaint alleges that Respondent violated Section 8(a)(1) by- ... Unlawfully enforcing and maintaining . . . the following rule .. . All working areas inside of the building, because of obvious housekeeping problems and problems of movement of people and material, are off limits for distribution of any literature. The quoted provision of Respondent's rule is not invalid on its face. Absent special circumstances , not present in this case, an employer may prohibit employee distribution of material in working areas . However, in Respondent's posted rule an express prohibition of distribution in working areas within the plant was coupled with an affirmative statement that distribution was permitted in the parking lot and other outside areas of Respondent's premises. From these two provisions in juxtaposition one would naturally infer that distribution was permitted only outside the building, with all interior areas being deemed working space. This natural inference from the wording of the posted rule was underscored by Respondent's conduct. Respondent did prohibit distribution in a nonworking area inside the building. On the two occasions when that prohibition was imposed, the employees involved were ordered or instructed to go outside of the building to distribute. Although Respondent maintained at the hearing that the employees were at liberty to distribute in nonworking interior areas such as the locker room and cafeteria, it was conceded that they had never been informed of this right. Viewed in the context of its adoption, including the actual prohibition of distribution in a nonworking area, the posted memorandum concerning distribution is invalid in impliedly limiting permissible distribution to the premises outside the building . See IUE, Local 806 (SNC Manufactur- ing Coj v. N. L. R. B., supra. C. Conclusion It has been found that the no-distribution rule posted by Respondent on December 18 was invalid as written and as enforced in that it prohibited employee distribution of union literature in nonworking areas of the plant during nonworking time. Since the complaint does not specifically allege that the promulgation of the rule was violative of the Act, the Trial Examiner refrains from determining whether, as maintained by Respondent, the written rule as posted was merely a continuation of an unwritten rule already in effect for a considerable time. No finding is made concerning the promulgation of the rule as such. The General Counsel presented some evidence that the rule had been discriminatorily enforced in that some distribution had been made on behalf of the independent union in the entrance hall. However , since no such allegation was made in the complaint , no findings or conclusions are here made in that connection. At the hearing Respondent maintained that even if the entryway of the plant should be found to be a nonworking area , Whited was properly disciplined for insubordination because Respondent was guilty, at most, of an honest and reasonable mistake and efficient plant operation requires that employees not be free to decide for themselves the propriety of plant rules which are not patently invalid. In effect, Respondent was contending for an adaptation of or analogy to the "obey now, grieve later " principle estab- lished in arbitration law. But such principle is unavailable to shield an employer from the consequences of infringe- ment upon employee rights guaranteed by Section 7 of the Act. Good faith is not a defense to such an infringement. N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 229-230, In. 8. In its brief, Respondent contends that the complaint should be dismissed because "any adverse effect of the Employer's rule has been de minimis. " The evidence does not support this contention . It is clear that the incidents here involved represent a direct dispute between Respon- dent and the Union as to the extent of the employees' rights. Respondent acknowledges that Whited acted in complete good faith in exercising what he understood to be his rights . The plant superintendent indicated that he considered this a direct challenge by the Union . The Union and Respondent had forcefully placed their positions before the employees. The conflict was then submitted to the Board for resolution . In this posture , effectuation of the policies of the Act requires that the decision be fully implemented and that the employees be afforded and informed of their statutory rights. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a rule prohibiting employee distribution of union literature in nonworking areas of Respondent 's building since December 18, 1969, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof. 4. By suspending Jack Whited from employment for distributing union literature in Respondent's plant on December 20, 1969, Respondent committed an unfair labor practice affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, the Trial Examiner will recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will also be recommended that Respondent be required to make Jack Whited whole for any loss of pay he may have suffered as a result of his suspension , with interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, it is hereby recommended that the following order be issued: ORDER Respondent, Cascade Corporation, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, or any other labor organization, by suspending or otherwise discriminating against any of its employees as to hire, tenure, or other terms or conditions of employment. (b) Maintaining in effect or enforcing any rule that prohibits off duty employees from distributing union or other self-organizational literature in any nonworking areas of the plant, including the employee entrance area, locker room, and cafeteria, as well as the parking lot and other outside areas. (c) Threatening employees with disciplinary action for distributing union literature during nonwork time in nonwork areas of the plant. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as r In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Revise its posted rule concerning distribution in a manner to make clear that during nonwork time employees may distribute union literature on any nonworking portion of Respondent's premises, including the entrance area and the aisle therefrom to the entrance to the men's locker room, as well as the locker room and lunch room, in addition to the parking lot and other outside areas. (b) Make Jack Whited whole for any loss of earnings suffered by him, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy". (c) Preserve and make available to the Board, or its agents, upon request, for inspection and reproduction, all payroll records, timecards, personnel files, and all other records necessary to analyze, compute and determine the amount of backpay to which Jack Whited may be entitled under the terms of the Trial Examiner's Decision. (d) Post at its plant in Springfield, Ohio, copies of the attached notice, marked "Appendix B" 7 Copies of said notice, on forms provided by the Regional Director for the Region 9, after being signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Region 9, in writing, within 20 days from the date hereof, what steps Respondent has taken to comply herewith.8 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 " 8 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 " ^rql i I dw4 "I 3M .V.3- ► 9rnAI .E VNidd,W ' X. ^nr^iaas2r awvy ONrdd4NS t wo021 bs W"°l 3.N'- W ood A-i9 W3 ss v 39vbo15 a9wtl-1 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby revise paragraph I of our memorandum concerning distribution of election literature, dated December 18, 1969, to read as follows 1. All employees are free to use the company parking lot or areas surrounding the building at any time for this purpose and all nonworking areas within the building, including the employee entrance area and passageway to the men's locker room, as well as the locker room and lunchroom, during the nonwork time of the employees. WE WILL NOT maintain or enforce any rule which prohibits distribution by employees of union literature during the nonwork time of the employees in nonwork- ing areas of the premises, including, inside the building, the employee entrance area and passageway to the men's locker room, the locker room and the lunchroom, as well as the company parking lot and areas surrounding the building. WE WILL NOT discipline or threaten to discipline any employees for distributing union literature in nonwork- ing areas of the premises during the nonworking time of the employees. WE WILL pay Jack White the amount of pay, with interest, which he lost when we suspended him in December 1969 for distributing union literature in the entrance area of the plant. Dated By CASCADE CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by 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, Room 2407, Federal Office Building, 550 Main St. Cincinnati, Ohio 45202, Telephone 513-684-3686.