Mallory Battery Co.

MALLORY BATTERY COMPANY Mallory Battery Company and Communications Workers of America, AFL-CIO. Case I 1-CA-3719 June 18, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 26, 1969, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled case, finding that Respondent had engaged in certain unfair labor practices but recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and Respondent filed exceptions and a supporting 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 this 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 hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. BRUCE HUNT, Trial Examiner: This proceeding, in which the charge was filed on August 30, 1968, and the complaint was issued on October 21, 1968, involves allegations that the Respondent, Mallory Battery Company, Lexington, North Carolina, violated Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. On December 5, 1968, I conducted a hearing at Lexington, North Carolina, at which all parties were represented. Subsequently, briefs were received from the General Counsel and the Respondent, and have been considered. The Respondent's motion to dismiss is granted. Upon the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE RESPONDENT 777 Mallory Battery Company, a Delaware corporation, operates a plant in Lexington, North Carolina, where it manufactures batteries. The Respondent annually ships products valued in excess of $50,000 directly to points outside North Carolina. There is no dispute, and I find, that the Respondent is engaged in commerce within the meaning of the Act. H. THE UNION Communications Workers of America, AFL-CIO, is a labor orgainzation which admits to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues During 1968, the Respondent had about 600 employees at the plant. During May of that year, the Union began organizational activity . Our issues are (1) whether, during August, one supervisor, Cyril Hudak, invalidly interrogated and threatened one employee, Doris Williams, and (2) whether, before and after October, the Respondent maintained an invalid rule prohibiting union activity on company property during nonworking time. B. The Conversation Between Hudak and Williams During 1967, the Respondent issued to its supervisory employees copies , of a booklet containing (1) rules concerning conduct by supervisors during an organizational campaign, and (2) "basic principles of supervision whether or not a union is concerned." On May 31, 1968, after the union activity began, a meeting of supervisors was held and the contents of the booklet were reviewed by management. The booklet, which was not distributed to employees or, insofar as appears, called to their attention, recites in part: The same law [NLRA], which guarantees to the employer the right of expressing his opinion about unions, also guarantees to employees the right to organize a union. We would certainly never interfere with anyone's right to do this. At the same time, we need not hesitate in stating our honest opinion as to why we believe a union is not needed in this instance. The booklet advised supervisors that: (1) You can - and should - explain Company Policies and working conditions. (5) You can tell employees why you think they should not join any union at this time: This is a very important right. You can tell them about the advantages you believe they have in discussing matters directly with the Company. The booklet advised additionally that: (1) You cannot warn or even hint that you will take any action against any employee for joining a union. * * * * * (3) You cannot threaten or coerce an employee to compel him to vote against a union. 176 NLRB No. 108 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) You cannot interfere in any way with the employees' rights under the law to join , form or assist any union. (5) You cannot ask employees whether or not they have joined the Union or how they propose to vote. On August 26, 1968, Williams attended a union meeting at which small badges, worded "I'm For The C.W.A.," were distributed to persons in attendance. On the next day, Williams attached her badge to the collar of her clothing and wore it in the plant . Williams' supervisor, Hudak, walked by her place of work, noticed the badge, and stopped to initiate a conversation . The testimony of the two individuals concerning what was said differs sharply. According to Williams, Hudak asked where she had obtained "that flashy badge," to which she responded by saying that he knew the answer and by asking whether he would "like to have one." Williams testified further that Hudak answered her question in the negative and then said to her that she had attended the union "meeting last night," that she acknowledged having done so, that Hudak asked whether less than 50 persons had attended, that she answered that the number was higher, that he asked "[h]ow many more?", and that she replied that she had not counted the number . Next, according to Williams, Hudak asked, "If the union gets in, what are they going to want?", to which Williams replied that the subject would be covered by a contract, and Hudak then asked, "Is it more money?" Williams replied , so she testified, that wages "will probably be high on the list," which prompted Hudak to ask whether she really thought that the Union could obtain higher wages, and she answered, "Well, there is one thing for sure, it can't get us any less." Continuing with Williams' version, Hudak then said that if the Union should succeed in organizing the employees, they would lose their "good insurance," paid vacations, retirement rights, and Christmas bonus , and that they would have to pay both union dues and assessments to build a union hall. Williams' testimony is weakened by the fact that on September 10, 1968, just two weeks after the conversation with Hudak, Williams gave an affidavit to one of the Board's Field Examiners in which she purported to relate the entire conversation with Hudak, but the affidavit does not attribute to Hudak any reference to insurance and vacations . Turning to Hudak's version of the conversation , he testified that he noticed the badge worn by Williams but that he was across a table from her, too far away to read the lettering on it. He testified further that he asked Williams, "Dot, where did you get that fancy button?", to which she responded, "Cy, this is a union button. Would you like to have one?", and that his answer was, "No, I'm sorry, I can't wear it. I'm a Republican." According to Hudak, nothing else was said . I do not believe that the conversation was as brief as described by Hudak. On the other hand, I believe that Williams exaggerated in giving her testimony.' The truth lies somewhere in Williams' version . It is unnecessary, however, to determine exactly what was said because, in the light of all the facts in this case, this isolated conversation between one supervisor and one of about 600 employees does not warrant a remedial order. 'Portions of Williams' testimony on another subject are also contradicted by testimony for the Respondent . Such testimony concerned the alleged solicitations of orders for products, including candy, by employees in violation of the rule discussed below. I believe that it is unnecessary to discuss the testimony concerning the rule except to the extent recited hereinafter. C. The Rule Prohibiting Certain Activity on Company Property During 1960, operations began at the plant. During 1961 or 1962, the Respondent posted plant rules at 3 places inside the plant. The poster, approximately 16 inches long by 12 inches wide, contained 15 printed rules. Rule 7 read as follows: OUTSIDE BUSINESS - Solicitations, collection of funds, selling among employees, pledges, subscriptions, circulation of petitions, distribution of literature, solicitation of memberships or similar activities are not allowed on Company property. Special permission may be granted in certain instances of recognized charities. During 1966, the Respondent caused to be printed a booklet for employees. Two of the 14 pages in the booklet are devoted to the plant rules . A copy of the booklet was given to each newly hired employee.' Williams, who was hired during 1967, testified that she was given a copy of the booklet by Don Sharpe, the personnel director at the plant, who pointed out rule 7 and told her that "there were to be no solicitations or that the employees were not supposed to sell things in the plant or on the plant property or take orders for anything, things of that nature." The General Counsel contends that the rule was sufficiently broad to prohibit solicitations of union memberships on the premises of the plant during the employees' nonworking time. Kern's Bakery, Inc., 150 NLRB 998, 1000-01. There is no evidence that rule 7 ever served as a deterrent to the employees' exercise of that or other Section 7 rights, however, and the charge in this case, which merely recites the wording of Section 8(a)(1), does not refer to the rule. On or about September 22, 1968, the Field Examiner assigned to the case talked with counsel for the Respondent and advised the latter that the validity of the rule would be an issue in the case. That advice prompted the Respondent to act. On October 2, a notice over the signature of the plant manager was posted on bulletin boards in the plant. It is typewritten, double spaced, and reads: NOTICE I am surprised to find that there might be some misunderstanding with respect to Rule 7 on Page 12 of the Employees Handbook and Rule 7 posted on the bulletin board. Because of this, I want to make it clear that neither of those [identical ] rules relates in any way to those solicitations and distributions which are legal under the National Labor Relations Act. The company and, I believe, most of the employees have so understood it in the past. We want to be sure everyone understands it in the future. On the day the notice was posted, the Respondent ceased giving to newly hired employees copies of the booklet mentioned in this section . The remaining copies, with one exception, were destroyed, and the copy that was retained was altered by the removal of the page on which rule 7 appeared. That copy is used by the personnel director in discussing the plant ' s policies with new employees. He was instructed by the plant manager to say to such employees, in lieu of referring to rule 7 , that the The initial question on cross-examination of John A. Grandolfi, the plant manager, and his response thereto, indicate that a similar or like booklet containing rule 7 was in use prior to 1966. MALLORY BATTERY COMPANY 779 selling of articles in the plant was prohibited , and there is no evidence that he failed to follow the instruction. At the time of the hearing, a new booklet had not been printed. Five days after the above notice was posted , the posters that embodied the plant rules were removed . New posters containing the rules were posted in all places at which the earlier rules had been posted . Rule 7 reads as quoted above with the addition of the following sentence: "This paragraph is not intended to refer to those solicitations and distributions which are protected under the National Labor Relations Act." The new posters are as large as the earlier ones, about 16 inches by 12 inches , but there are certain differences . The original posters were pink in color with a white insert upon which the rules were printed in black. The new posters are white with the rules printed in black . Additionally, the original posters commenced "FOR YOUR PROTECTION" in large red type, followed by a second line in smaller black letters reading: "PLANT RULES." The new posters are headed "PLANT RULES" in large black type beneath which appears in smaller red type: "FOR YOUR PROTECTION." I find that the change in format was likely to catch the eye of any employee who was familiar with the original posters. The General Counsel, citing Kern's Bakery, supra, and other cases, correctly contends that rule 7 as originally written violated Section 8(a)(l). He contends also that the invalidity was not cured by the revision of that rule because ( 1) the explanatory sentence added to it "was ambiguous and legalistic in nature ", and (2) the Respondent's efforts to bring the revised rule to the attention of the employees should have included individual letters or oral remarks instead of having been limited to typewritten notices and new printed posters . I find that there was adequate publication of the revised rule, but that the revision is not meaningful to employees. The addition of the explanatory sentence ("This paragraph is not intended to refer to those solicitations and distributions which are protected under the National Labor Relations Act") places upon employees the unwarranted burden of having to seek the advice of persons who are knowledgeable in labor law in attempts to ascertain the types of union activity not prohibited by the revised rule. The Respondent may not shift to its employees a burden that is properly its own . It is the Respondent's obligation to revise Rule 7 so that its employees can understand the types of union activity in which they may engage on the Respondent's property during nonworking time without fear of disciplinary action. Although I have concluded that the revision of the rule did not cure its invalidity, I shall not recommend an order against the Respondent. The revision may have been made in a sincere, although erroneous, belief that it would remove the invalidity . In this case of minimal unfair labor practices in a plant of 600 employees, the Respondent should be given an opportunity to prove its good faith. If, after a reasonable period of time, the Respondent has not revised Rule 7 in the light of the last sentence in the paragraph next above, the Respondent may face the .prospect of another charge and complaint. I recommend that the complaint be dismissed.