ESB, Inc.

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exide Alkaline Battery Division of ESB , Inc. and International Union of Electrical, Radio, and Machine Workers, AFL-CIO. Cases 11-CA-3611 and 11-RC-2707 June 30, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By MEMBERS FANNING, BROWN, AND ZAGORIA On April 22, 1969, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that 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. He also found, in Case II-RC-2707 that the Respondent interfered with a Board election held on May 24, 1968, and recommended that the election be set aside and that a new one be directed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, 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 these cases 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 brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' The Trial Examiner found, and we agree, that the Respondent interpreted its no-solicitation rule, as modified by the January 3, 1967, notice, in a manner that unlawfully restricted solicitation. The record indicates that the Respondent interpreted the rule to allow solicitation during times when the employees were on scheduled nonwork time such as coffee and lunch breaks, but not when they were on other nonwork time. In this connection, we note that Richardson was discharged for engaging in union solicitation during alleged working time although the activity occurred when Richardson and the employee he spoke to were both standing in line at the timeclock waiting to punch out for the day. We also agree with the Trial Examiner that for the reasons stated by him, the no-solicitation rule posted by the Respondent on April 24, 1968, violated Section 8(a)(1) and therefore interfered with the employee's free choice in the election held on 'In view of the fact that, contrary to the Trial Examiner's statements, the Respondent admitted the allegation of the complaint that Brinkley, McMillan, and Simmons are supervisors within the meaning of the Act, we find that these individuals are supervisors. May 24, 1968; however, in addition, we find that because the rule is presumptively invalid on its face, its continued existence constituted an interference with the election.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Exide Alkaline Battery Division of ESB, Inc., Sumter, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as herein modified. 1. Delete subparagraph 1(d) and substitute the following: "(b) Promulgating, maintaining, or enforcing no-solicitation rules prohibiting employees during nonworking time from soliciting for the Union on Respondent's property." 2. Delete the fifth indented paragraph of the notice and substitute the following: WE WILL NOT promulgate, maintain, or enforce no-solicitation rules prohibiting solicitation on behalf of the Union during nonworking time on our property. IT IS FURTHER ORDERED that the election held in Case 11-RC-2707 on May 24, 1968, be, and it hereby is, set aside, and that the case be remanded to the Regional Director for Region 11 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election' omitted from publication.] 'Southern Electronics Co, Inc, 175 NLRB No I 1 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc, 156 NLRB 1236, N.L R.B v Wyman-Gordon Company, 394 U.S. 759 . Accordingly, it is hereby directed that an election elibigility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region I I within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner : Based upon a charge filed on May 3, 1968, by International Union of Electrical Radio and Machine Workers, AFL-CIO, hereinafter referred to as the Union, the complaint in Case 11-CA-3611 was issued July 23, 1968. Said complaint as 177 NLRB No. 99 EXIDE ALKALINE BATTERY DIV. OF ESB, INC. amended,' alleges that Exide Alkaline Battery Division of ESB, Inc., variously referred to herein as the Company, the Respondent, or the Employer, engaged in conduct violative of Section 8(a)(1) and (3) of the Act. Respondent, by its answer, denies that it committed the unfair labor practices alleged in the complaint. By order dated October 21, 1968, Case lI-RC-2707 was consolidated with Case 11-CA-3611 for a hearing "to resolve the issues raised as to the validity of the Employer's solicitation rule as related to Objection I." Pursuant to notice, a hearing was held in Sumter, South Carolina, on December 2, 3, and 4, 1968, before me. Briefs were received from the General Counsel and Respondent within the time designated therefor. Upon the entire record' in this proceeding and upon observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a Delaware corporation with a plant at Sumter, South Carolina, where it is engaged in the business of manufacturing batteries.' During the 12 months' preceding the issuance of the complaint, which is a representative period, the Company received at its Sumter, South Carolina, plant raw materials valued in excess of $50,000 from points outside the State of South Carolina. During the same period of time, the Company manufactured, sold, and shipped from its said plant finished products valued in excess of $50,000 to points outside the State of South Carolina. As is admitted by the Company, it is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED As is admitted by the Company, the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES It is alleged in paragraph 8 of the complaint, as amended, that on March 27, 1968, Respondent discharged Carl R. Turner, Clarence P. Tallent, James A. McKnight, David L. Richardson, and Charles A. Weatherly because of their union activities in violation of Section 8(a)(3) of the Act.' The Respondent admits that it discharged the aforesaid employees, but denies that such action was violative of the Act, asserting that their discharges were for engaging in solicitation on behalf of the Union in violation of the Company's no-solicitation rule. It is further alleged in the complaint that Respondent, between the dates of March 6 and March 26, 1968, engaged in various acts which were violative of Section 8(a)(1) of the Act. Respondent denies that it engaged in the conduct alleged. It is also alleged in the complaint that "since on 'The complaint was amended by changing the State in which Respondent was alleged to have been incorporated to the State of Delaware, and by deleting the name of William Weatherford from paragraph 8 'L. 3, p 261 of the transcript is corrected to substitute the words "I am" for the words "you are " This correction not only is in conformity with the Trial Examiner's recollection of what was stated, but also is dictated by the context in which the words appear 'Said plant at Sumter, South Carolina , is the only one of the Company's plants which is involved in this proceeding 779 or about November 3, 1967," Respondent has maintained and enforced a rule with respect to distribution of literature and solicitation which is violative of Section 8(a)(1) of the Act. It is also alleged that on April 24 Respondent posted a notice on its bulletin boards containing a no-solicitation rule which is violative of Section 8(a)(1) of the Act. Respondent denies that it violated Section 8(a)(1) of the Act by virtue of its rules. The Union started its organizational campaign in the Respondent's plant in the latter part of February, 1968. Sometime prior to March 13, 1968, the Respondent learned of the Union's organizational attempt and on March 13, the following letter to employees was posted on bulletin boards in the plant: In the past few days, a number of employees have asked about the Company's position on unions. Our position has not changed. This Company does not want a union in this plant. We don't think any outsiders, such as a union organizer from Georgia, have anything worthwhile or constructive to offer. The only thints the union sells are confusion, turmoil and trouble-and they charge a price for it. This is why the Company will resist the union with every legal means available. The union may ask you to sign one of their cards and say it is "just to get an election" They may also say that if you sign a card it will be kept "secret." This is highly misleading If the union can get enough cards signed, they don't have to ask for an election. It is common practice nowadays for unions to give the cards to the Company and ask the Company to look at the signatures. Then they say no election is necessary, because the cards say you have already "designated" the union as your "bargaining representative." Don't let the union mislead you. If you sign a union card, you could be giving up your right to a secret ballot election. It should be noted that the aforesaid letter was received in evidence with the representation from General Counsel that it was not offered as proof of an independent violation of the Act, but merely as proof of the Respondent's antiunion animus. It is found that this letter, in addition to other conduct of the Respondent found hereinbelow, amply supports the conclusion that Respondent did entertain a strong antiunion animus. During a period of approximately an hour toward the end of the day shift on March 27, 1968,5 the five above-mentioned employees were discharged by Calvin Cross, Respondent's manager of employee relations. In order to determine whether or not said discharges, or any of them, were discriminatorily motivated, it is necessary to consider them in light of the entire record, i.e., in light of the circumstances leading up to the discharges and in context with each other. Following is an evaluation of the testimony of each of the discharged employees with respect to events preceding his discharge and other testimony relative to said events. Carl R. Turner At the time of his discharge, Turner had been employed by Respondent at the Sumter plant for 2-1/2 years. He 'As indicated above, this paragraph was amended to delete therefrom the allegation that one William Weatherford was also discriminatorily discharged. Consequently, evidence in the record relating to his discharge will be disregarded 'It should be noted that the Sumter plant commenced operations in late summer of 1965, and , therefore, at the time of the aforesaid discharges it had been operating approximately 2 years and 8 months. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was classified as a leadman and set up man in "department 31," the screw machine department, where he had worked approximately a year and a half. In the, latter part of February 1968, he, along with other employees, attended a meeting at the home of then employee Roger Shelton, at which they discussed the matter of having a union represent them. Subsequently, he attended some 10 meetings at the union hall, signed a union authorization card, and obtained signed union authorization cards from other employees. Turner testified that on the afternoon of March 13, on returning from his break, he saw the above-quoted March 13 letter on the bulletin board and that he "kind of shook" his head "like I disagreed with it." He further testified that he was then engaged in conversation by Joseph Blackwell, plant superintendent. His testimony as to their conversation at that time is as follows: Well, he asked me what was the matter, and I said that stuff in the letter on the bulletin board it is not true. And he said, well, why not? And I said, well, Mr. Blackwell, I can't talk to you on the floor on company time, about union. And he said, why not, the company has nothing to hide, you can talk all you want to. So, we discussed it the advantages and disadvantages of the union and disagreed in this matter. According to Turner's testimony, about half an hour later he was summoned to Blackwell's office, where Blackwell informed him that he "wasn't quite sure" with respect to their previous conversation with respect to the percentage of cards needed to file for an election . He told Turner that he wanted him to accompany him to Cross' office. Turner also testified that Blackwell questioned him as to why the employees wanted a union in the plant and that he recited complaints that the employees had. They then proceded to Cross' office, after Blackwell called Cross. Turner's testimony as to the conversation in Cross' office may be summarized as follows: Blackwell said he wanted Cross to straighten him (Turner) out on the percentage needed for an election; Cross said he believed it was 30 percent; he told Cross that he was right; Cross said "Carl, it is your life, if you want to throw it away and involve yourself in unions, it is up to you"; Cross then "started to tear down the Union," stating that it "couldn't offer us anything," and adding "that the Union was no good for employees, it caused trouble"; Cross asked why the employees wanted a union in the plant; and he told Cross of the same employee complaints he had previously told Blackwell. Turner further testified that he told Cross that the Union could get 51 percent of the employees to sign cards; and that he was going to back the Union 100 percent and get other people to sign union cards. The only allegation in the complaint relating directly to the above testimony by Turner of his conversations with Blackwell and Cross is an allegation that he was unlawfully interrogated by Cross. Blackwell's testimony corroborates that of Turner that they had two conversations in which they discussed the procedures by which the Union could be recognized. Although there are variations in Blackwell's testimony from that of Turner, they are of no materiality.' 'For example, Blackwell testified that 2 or 3 days separated the conversations. This is of no consequence, since it is apparent from the testimony of both that their two conversations led to the meeting in Cross' As to the conversation in Cross' office, both Blackwell and Cross denied a considerable portion of Turner's testimony. Cross testified that he read to Turner the Company' s rule against solicitation and warned him that he would be discharged for violating it.' Although Turner did not testify there was any mention about the rule against solicitation, he did not deny Cross' testimony with respect thereto. It is the judgment of the Trial Examiner that Turner, who impressed the Trial Examiner as a witness attempting to testify to the best of his recollection, misconstrued the warning about becoming too involved with the Union as being directed against activities on behalf of the Union rather than at violations of the no-solicitation rule.' Both Cross and Blackwell denied that Cross asked him why the employees wanted a union, that Turner told Cross of employees' complaints, and that Turner stated he was 100 percent for the Union and would solicit cards. The Trial Examiner is of the opinion that Turner's testimony in this regard should be credited. It appears improbable that Blackwell, a plant superintendent, and Cross, the manager of employee relations, of a large plant such as that of the Respondent, would devote as much time as they did to Turner merely for the purpose of discussing the legal question of what percentage of authorization cards was needed to obtain an election or recognition. It is inferred from all of the circumstances and the credited testimony that Blackwell realized from his conversations with Turner that Turner was strongly prounion and that the meeting was arranged with Cross in order to determine whether or not he was active on behalf of the Union and to attempt to curtail his union activities. Consequently, it is concluded that Respondent did coercively interrogate Turner in violation of Section 8(a)(1) of the Act as alleged in the complaint. Turner further testified that on March 26, Robert Brinkley, a foreman,' talked to him around breaktime (about 2:15 p.m.). His testimony as to their conversation is as follows: A. Mr. Brinkley come to me, Mr. Brinkley walked up to me and said, Carl, what is this I hear about you? And I said, good or bad? And he said, bad. And I said, what? And he said, union. And I said that is not bad that is good. A. Mr. Brinkley and I were talking, and he said, well, Carl, he said, this union can hurt you. And I said in what ways? And he said for promotions for upgrades, he said, and he said, family can get hurt because you are involved or have involved yourself in this union mess. And I said, Mr. Brinkley, I said, it is one of my rights if I want to vote for a union or to campaign for a union, on my time, I said this is one of my rights and I will do so. I said I have already told personnel that I had signed my card and that I was in favor of the union. And if office. 'his testimony was corroborated by Blackwell. 'There is no allegation in the complaint of a threat by Cross which refers to this incident and General Counsel did not present a motion to amend the complaint to include such an allegation. 'Although Respondent denied the allegation in the complaint that Brinkley was an agent and supervisor, it appears appropriate to conclude that he was a foreman and enjoyed supervisory status. Respondent offered no evidence to the contrary. EXIDE ALKALINE BATTERY DIV. OF ESB, INC. my family gets hurt so I will have to just take that chance. Q. What did he say to that, if anything? A. He said, well, I suggest that you drop the union before you get hurt. Brinkley testified that he was Turner's supervisor for about I week prior to Turner's termination, and denied the above testimony of Turner. On cross-examination he testified that it was possible that he could have talked to Turner about the Union. As above stated, Turner impressed the Trial Examiner as a witness who was attempting to tell the truth to the best of his recollection. He did not appear to be a witness who would fabricate a story out of whole cloth. In the circumstances, Turner's testimony is credited and it is found that, through Brinkley's conduct, Respondent threatened Turner with economic reprisals for union activity in violation of Section 8(a)(1) of the Act. David L. Richardson Richardson had been employed by Respondent for approximately 2 years and 8 months at the time of his discharge.10 Richardson testified that he attended a union meeting in the last part of February; that he signed a union authorization card; and that he solicited cards on behalf of the Union. Richardson further testified that about March 6 he was informed by his admitted supervisor, James Clanton, that Cross wanted to talk to him about his vacation. He went to Cross' office where Cross informed him that he was eligible for 2 weeks' vacation. Richardson further testified that, when he rose to leave, Cross told him not to "rush away" and asked him a number of questions, such as how he liked the job and how the employees liked "things." Richardson also testified that Cross asked him whether he thought "we need a union to solve our problems" and that he replied that he "thought the Union would help a lot . Because I was for it myself." Richardson further testified that Cross stated that a union wasn't needed "to solve our problems and that if the Union did get in the Company can close the door." Cross testified that Richardson was one of a great number of employees to whom he talked about the Company' s vacation policy, since there was some question about the vacation allowances to be given older employees. Understandably, Cross' memory was vague as to details of his interviews with the many employees whom he interviewed with respect to the vacation policy. However, he categorically denied that he talked to Richardson about the Union. Furthermore, he testified that he did not learn about the Union's organizational activities until the weekly Monday meeting of foremen on March 11. On the other hand, Brinkley testified that he learned about the union activity at the plant about the end of February. It is noted that Clanton testified that he did not learn about the Union until he read the letter posted on the bulletin board on March 13." It is concluded that management personnel, particularly Cross, were aware of the union activity at least as early as March 6.'= Richardson impressed the Trial Examiner as a credible witness and, in the circumstances, his above testimony as to his conversation with Cross is credited. Based upon said credited testimony, it is concluded that Cross unlawfully interrogated Richardson and threatened economic reprisal if the Union were successful, in violation of Section "He was one of the first employees hired ( having clock number 7). 781 ► 8(a)(I) of the Act. Richardson further testified that after he returned from his conversation with Cross on March 6, Clanton asked him if he had talked with Cross. His testimony as to their conversation continues as follows: A. He told me he said I hope you didn't lie to Mr. Cross about you was for the union , and I told him no sir, I didn't go up there and lie and that I told him I was for the union, and he told me that Mr. Cross did know and find out if I was lying because he knows about every union meeting I attended. So he told me that the company don't need a union, he told me that you have to let those damn yankees keep the union up there in Philadelphia, because if they come down here that the plant can close the door. And he told me you go back to work and if he catched me talking to anybody on or unless it was not on company time on a break time or lunch time, that I will be discharged from the plant immediately because he knows that we are all union leaders. Q. Anything else that he said in that conversation that you recall? A. Not as I remember, not as I can remember. Q. Was there anything said about raises? A. Yes sir, he told me why it took me so long to get my raise, you know, was because of those union meetings that I attended, you know. Clanton denied Richardson's above testimony about their conversation. He testified that early in February he upgraded Richardson and said that if he demonstrated that he could hold the job he would get an increase and warned him about chatting with employees. He further testified that in March 1968 he warned employees individually about solicitation except during break time "or on their own time or lunch period." Richardson's testimony is credited and is concluded therefrom that, through the conduct of Clanton, Respondent violated Section 8(a)(1) of the Act by threats of reprisal for union activity and by creating the impression of surveillance of employees' protected activities. Charles A. Weatherly Weatherly was employed by Respondent shortly after the plant commenced operations. For the last 1-1/2 years of his employment he was in department 22, the supervisor of which was Hugh McMillan." According to Weatherly's testimony, he attended the organizational meeting at Shelton's home and 8 to 10 union meetings. He signed a union authorization card and was a member of the organizational committee. He also engaged in the solicitation of authorization cards on behalf of the Union. On March 4 he was advised by a union representative to inform his supervisor that he was engaging in the solicitation of union cards and was a member of the This is considered in contrast with Cross' testimony that he learned about the union activity on March 11 at the foremen's meeting which presumably Clanton , as a foreman, attended "This conclusion is also supported by the uncontradicted and credited testimony of Charles A Weatherly, set forth hereinbelow, that on March 5 he informed his supervisor, Hugh McMillan of the activity on behalf of the Union. "Although Respondent denied the allegation in the complaint that McMillan was an agent and supervisor, it appears appropriate to conclude that he was a foreman and enjoyed supervisory status. Respondent offered no evidence to the contrary 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizing committee. Weatherly further testified, without contradiction, that on March 5 he told McMillan that he had signed a card and was a member of the committee. He also testified that, when he was again advised to tell his foreman in front of a witness that he was engaging in the solicitation of union cards, he again informed McMillan of that fact on March 12 and that McMillan told him "to be careful who I talked to because some people would run back to the office and tell ." None of his foregoing testimony was contradicted and is credited. It is inferred therefrom that management had knowledge of Weatherly's union activities. James A. McKnight McKnight was employed by Respondent for approximately 2-1/2 years prior to his discharge. He was a leadman and set up man and was supervised by Nelson Pierson . McKnight testified that he attended the organizational meeting in Shelton's home, that he signed a union card, attended all of the union meetings and attempted to get fellow employees to sign union authorization cards. It appears from the testimony of both McKnight and Cross that McKnight complained to Cross of unfair treatment by Pierson which he told Cross was due to his (McKnight's) activities on behalf of the Union. Therefore, it is apparent that Cross was aware that McKnight was active on behalf of the Union. Clarence P. Tallent Tallent had been employed by Respondent approximately 6 months prior to his discharge as a leadman and setup man in the can department which was under the supervision of Joe Simmons as foreman. It appears from his testimony that he attended an organizational meeting at Shelton 's home, that he signed a union authorization card in the beginning of March and that he solicited authorization cards on behalf of the Union. The Discharges As stated above, the aforementioned five employees were discharged by Cross over a period of approximately an hour toward the end of the day shift on March 27, 1968. Each of them was told by Cross that he was being discharged for violation of Respondent's rule against solicitation, was handed a check or checks (apparently for the amount due him ), was escorted out of the plant, and was denied an opportunity to go back into the plant to obtain his personal possessions (which Cross stated would be sent to him). Although some of them protested they had not violated the rule and requested an opportunity to prove their innocence, Cross stated that he would not give them such an opportunity . It appears from Cross' testimony that he based his decision to discharge the five employees on the information he received from three employees, which information was incorporated by them in written statements. The record discloses that he made no attempt to investigate the truth of the information contained in the statements. The statement with regard to Turner was given by employee Louise B. Caraway and is as follows: Every [sic] since I heard about the Union wanting to come into the Exide Carl Turner has asked me about signing a card . He has come to me during working hours and ask[ed] me if I was ready to sign a card. I have always refuse[d ]. Then last Thursday night March 21, 1968, he and Mr. Robert Best came to my house and talked to me about the union and all it benefited. He assured me if I signed a card things would be a lot better for me. I told him I would sign it if he didn't come back to work & tell & he assured me he wouldn't. He said no-one would know I sign it. Well it seem as if he didn't keep that promise. The statement with respect to Richardson was given by employee W. E. McLeod and is as follows: As I walked up to the clock at about 4:30 p.m. to punch out 3 or 4 men was talking about the union. I was told there would be some changes made in the next 2 weeks around here by one [Richardson] but he was very doubtful that I would be working here at that time - my impression was that I not being interested in the union I wouldn't have a job at ESB. It should be noted, at this point, that the record discloses that Respondent permitted approximately 5 minutes prior to the end of the shift for cleaning up and washing and that it was customary for employees to gather at the timeclock just prior to 4:30 p.m., which was the end of the shift. The statement with respect to Weatherly was given by employee George T. Searight, III, and is as follows: Al Weatherly called on the phone and asked for mine and Homer's address and phone no. I felt this was something concerning the union so no information was given. The statement with respect to McKnight was also given by Searight and is as follows: On March 21, 1968 appr. 10:30 A.M. I was approached by Allen McKnight to pull some handles. As I was doing this he began to discuss the union. He said he would bring me some information concerning union benefits. Also "Why don't you sign, Are you scared you'll lose your job?" When I deliver parts to the tray shop I am usually asked by Allen and Terry. Have you signed your card yet? Allen gave me this card during work hours and asked me to sign it. The statement with respect to Tallent was given by Caraway and is as follows: Also I have had Clarence (Joe) Tallent come up to me on the job and asked if I have sign a card . He has done so a number of times. He also came up to me yesterday and asked me if I sign a card & I didn't reply. He said if I hadn't that I & the girl sitting next to me couldn't talk anymore. I told him if he had anything else to say to talk to me on the ou[t]side of the plant. He walked away. Then came back later & said he didn't mean anything about what he said. Cross testified as to how he happened to receive the above-mentioned statements from the three employees (McLeod, Searight and Caraway). He testified that he received a call from Clanton that McLeod has a complaint and wanted to talk to him. He told Clanton to send McLeod to his office . Cross further testified that McLeod told him substantially what was contained in his statement, that he asked McLeod if he would make a written statement, and that the above-quoted statement was that given to him by McLeod. Cross also testified that Searight "stuck his head in the door of the office" and asked to speak to him, that Searight complained people were `bugging" him to sign a union card, and he invited him in to talk about it. Searight told him of his complaints with respect to Weatherly and McKnight ; he asked Searight if he would EXIDE ALKALINE BATTERY DIV. OF ESB, INC. be willing to make a written statement; and the above-quoted statement was that written by Searight. Cross testified that Searight told him that Weatherly stated that he wanted information as to the addresses and phone numbers so that he could send a "union man out to see them," and Searight testified that Weatherly stated that to be the purpose for the information . On the other hand, Weatherly testified that he did not state to Searight what his purpose was in seeking the information , and it is noted that Searight's statement is not to the effect that Weatherly told him the purpose, but only that he, Searight, "felt this was something concerning the union." Weatherly' s testimony is credited and it is inferred that Cross had a basis only for suspecting the purpose. Cross testified (with respect to receiving the statement from Caraway) that he received a call from Blackwell informing him that Caraway complained about people "bugging her on the job," that Blackwell asked if he wanted to talk to her, and that he informed Blackwell that he would talk to her. She came to see him and told him substantially what was contained in her above-quoted statement . Caraway testified on direct examination that she complained to Blackwell about Turner and Tallent and thereafter she was summoned to Cross' office. However, on cross-examination she denied that she reported her complaints to Blackwell . A statement" she gave to the Board agent prior to the hearing contains the following: " I don't know why Cross would have called me into his office. I never complained to any supervisor that Tallent or Turner had contacted me. Apparently Cross found out from someone that I had been contacted."" The No-Solicitation Rule as of March 27 Respondent has followed the practice of distributing to employees a handbook entitled "About You and Your Job." The handbook contains a set of plant rules divided into three groups according to their "relative importance and seriousness of any misconduct ." The first group contains 16 types of misconduct "which are considered inexcusable, and shall be cause for immediate discharge." Among this group is the following : "Distribution of literature or solicitation by employees on company property which in any way interferes with the work." On November 26, 1965, the following notice was posted: November 26, 1965 NOTICE For the information of all employees the Sumter Plant Non-Solicitation Rule is cited here as a supplement to the employee handbook. It is being posted for the guidance of all concerned. (1) There will be no solicitation by non-employees at any time on company property. (2) There will be no solicitation by employees on company property which in any way interferes with the work. S. G. Deller Manager "She testified that she read the statement, that it was correct, and that she signed it on the back. "The contradiction in Caraway's testimony indicates that Caraway was not a reliable witness . There is no explanation in the record as to what led up to her interview by Cross other than that afforded by Cross. In the circumstances, little purpose would be served in resolving the apparent conflict between the testimony of Cross and Caraway. 783 Employee Relations On January 3, 1967, the following notice was posted:16 Exide Alkaline Battery Division January 3, 1967 NOTICE Solicitation and distribution of literature by non-employees on company property is prohibited. Solicitation by employees on company property during working time is prohibited. Distribution of literature by employees on company property in non-working areas during working time is prohibited. Distribution of literature by employees on company property in working areas is prohibited. S. G. Deller Manager Employee Relations It is noted that the rules set forth in the January 3, 1967, notice are identical to the rules which were considered by the Board in Campbell Soup Company (Swanson Division ), 170 NLRB No. 167. It appears from the cited case that the rule against solicitation by employees" is ambiguous, but that, by a 2 to 1 vote, the Board panel decided that it will not find such a rule violative of the Act when both management and employees interpret it in a manner which does not unlawfully restrict solicitation . However, the evidence in the instant case demonstrates that, although employees believed they were permitted to solicit on behalf of the Union during lunch and the mid-morning and mid-afternoon breaks, management interpreted the rule to apply to a situation in which there is solicitation by one employee of another when neither of them is on his working time . Furthermore, it appears that management also considered it applicable to conversation referring to the Union even though no solicitation is involved.1fl These interpretations by management are evidenced by the discharges of Richardson and Weatherly." It is alleged in the complaint that the rule in the handbook against solicitation "which in any way interferes with the work" was unlawfully maintained and enforced from November 3, 1967, to April 24, 1968.=° It appears from the findings hereinabove that the handbook rule was modified by the notice posted on November 26, 1965, and the notice dated January 3, 1967. However, in view of the interpretations by management of the ambiguous handbook rule, as modified, it is found that during the period alleged in the complaint Respondent did maintain and enforce an unlawful no-solicitation rule in violation of Section 8(a)(1) of the Act. "Although several of General Counsel's witnesses testified that they never saw this notice, the testimony that it was posted on the main bulletin board is credited. "This is the only rule which is in issue in this proceeding. "There is no showing that there was any prohibition against employees discussing any subject other than the Union on working time. "Richardson was discharged for making a statement about the Union within working hours, but when neither employee was on his working time. They were, as indicated above, standing in line at the timeclock waiting to punch out, dust prior to the end of the shift . Weatherly was discharged for calling Searight during working time for the purpose of getting 4his and a fellow employee's address and phone number "On April 24, 1968, Respondent posted another notice containing rules against distribution and solicitation which it is alleged contained a rule against solicitation which was unlawful. This issue is considered 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cross, who became manager of employee relations February 26, 1968,=' testified that prior to discharging the aforesaid five employees he investigated the Company's enforcement of the no-solicitation policy. His testimony is as follows: I knew what our policy was on solicitation, but I had to investigate it to make doggone sure on how we enforced it. And how each foreman enforced it, and in the next couple of days I went to each foreman individually, and found out how it had been enforced, and that there was no solicitation allowed during working hours. And it was only allowed before work, and after work, and during breaks and during lunch, for whatever reason, presents or going away gifts for people or whatever." Several of Respondent's foremen testified that they never observed any solicitation during working time. However, Cross also testified that no one had been discharged for soliciting and that "it had never been reported or seen that anyone was soliciting." Considerable testimony was adduced with respect to soliciting practices prior to the discharges. Turner testified that there were frequent collections for employees who were leaving and for flowers for people who were sick or had passed away. Turner also testified that on occasions supervisors contributed to the funds. He further testified that Joe Simmons," foreman of the can department, not only was present when funds were collected during working time, but also contributed, and that he permitted money left over from a collection to be kept in a drawer in his desk until it was needed for the next time there was a collection . Simmons was not called as a witness and therefore Turner's testimony with respect to Simmons was uncontradicted and is credited. Turner further testified to several instances in which there was solicitation which was either observed or participated in by supervisors, particularly with respect to a collection taken for Shelton, who left Respondent's employ in the first half of March 1968. Both Turner and Tallent testified with respect to the collection for Shelton. According to their testimony, Linda Buesley, the departmental clerk, and several others went through the department and solicited money for Shelton during working time. Also, according to their testimony, Buesley was the most active in doing so. It is noted that neither General Counsel nor Respondent called her as a witness. The Trial Examiner draws no inference from this failure to call her as a witness by either of the parties, except with respect to Blackwell's testimony that she asked for permission to make the collection and he warned her about soliciting during working time. This aspect of Blackwell's testimony, being uncontradicted, is credited. Both Turner and Tallent testified that just prior to break time they observed Blackwell adding to the fund by dropping some money in the can used for the collection, which money, it was stated at the time according to Tallent, was owed Shelton for work Shelton had done for Blackwell . They also testified that Blackwell presented the herembelow. "Replacing S G. Deller, who left in November 1967. "This testimony is obviously heresay and is considered only as proof of what was stated to Cross. "Although Respondent denied the allegation in the complaint that Simmons was an agent and supervisor , it appears appropriate to conclude that he was a foreman and enjoyed supervisory status. Respondent offered no evidence to the contrary. collected funds to Shelton during the afternoon break. Shelton testified that he had no knowledge about how the money was collected. Blackwell testified that he saw no evidence of it being collected during working hours and that Buesley asked him to contribute during the lunchbreak at which time he dropped a dollar bill into the can. Blackwell testified that he did not present the money to Shelton and was not even present during its presentation. On the other hand, Shelton, who was called as a witness by Respondent, testified that Blackwell was present during the presentation and said a few words about his leaving, although the money was presented to him by Buesley. Shelton testified that Blackwell did give him some money for work he had done on Blackwell's property but that the transaction occurred after the shift ended. The contradiction in the testimony of Blackwell and Shelton as to Blackwell's presence during the presentation to Shelton is of no moment except that it corroborates the testimony that Blackwell was present and tends to weaken the credibility of Blackwell. Although Shelton appeared to be a credible witness, it is deemed that he must have been mistaken as to the time when Blackwell gave him the money Blackwell owed him. There is no explanation in the record of how Tallent could have known of Blackwell's obligation to Shelton other than that afforded by Tallent. This, in addition to the fact that both Turner and Tallent appeared to the Trial Examiner to be credible witnesses, persuades the Trial Examiner to credit the testimony that Blackwell added to the collection for Shelton prior to the breaktime. It is quite possible that Blackwell did not observe solicitation of employees during working time. It is also quite possible that other foremen who testified they did not observe collections being made during working time were testifying to the best of their recollection. The testimony of Turner and Tallent is credited that collections were frequently made during working time for the presentation of gifts or flowers, and that there was solicitation for Shelton during working time. It is inferred from the record that, prior to the advent of the Union, Respondent had a permissive policy with respect to such solicitations, that the no-solicitation rule was not required to be policed by the foreman, and that consequently they paid little or no attention to such activity. This conclusion is predicated on the above credited testimony of Turner and Tallent (that collections were frequent and made during working time) and of Cross that there were no discharges for solicitation or complaints about solicitation prior to March 1968. It is also predicated on the lack of evidence that, prior to the advent of the Union, any individual employee was warned about solicitation during his working time. Concluding Findings With Regard to the Discharges Considerable testimony was adduced as to whether or not several of the discharged employees did or did not engage in solicitation during their working time. However, the issue herein is not whether the discharged employees did, in fact, so engage in solicitation, but rather whether the discharges were discriminatorily motivated, in view of the information Cross had at the time. The decision to discharge the five employees was predicated upon the information contained in the aforementioned three statements which Cross received. In view of the findings that no attempt was made to investigate the truth of the allegations in said statements, that the employees were EXIDE ALKALINE BATTERY DIV . OF ESB, INC. summarily ushered out of the plant without an opportunity to collect their personal possessions, that Cross knew or had reason to suspect that each of the discharged employees was active on behalf of the Union, that Respondent harbored a strong antiunion animus,26 that with respect to two of the discharged employees, Richardson and Weatherly, Cross had no information that they had engaged in solicitation during their working time,25 and that prior to the advent of the Union, Respondent had a permissive policy toward solicitation, it is concluded that Respondent seized upon prohibited solicitation by the dischargees as a pretext for ridding itself of union adherents in violation of Section 8(a)(3) and (1) of the Act. The No-Solicitation Rule as of April 24 It is alleged in the complaint that on April 24, 1968, the Respondent posted an invalid no-solicitation rule. The rule provides, "solicitation by employees on company property during working hours is prohibited ." This rule was contained in a notice dated April 24, 1968, which was identical to the aforementioned notice dated January 3, 1967, except that in the above quoted no-solicitation rule the word "hours" appears, instead of the word "time." The earlier notice was signed by S. G. Deller, whereas the April 24, 1968, notice was signed by C. E . Cross. Deller was the former manager of employee relations who left the Company in November 1967 and was replaced by Cross. According to the credited testimony, Cross ordered that the January 3 , 1967, notice be copied except for the substitution of his name as the manager of employee relations. It appears from credited testimony that the stenographer in copying the notice inadvertently substituted the word "hours" for the word "time" and that when the mistake was discovered in July 1968 the notice was retyped in accordance with her original instructions. 26 Inasmuch as the employees had no means of knowing that the word "hours" was substituted by mistake , it must "Evidenced by the aforementioned letter of March 13 posted on the bulletin board which stated Respondent's opposition to the Union, and by the above findings of violations of Sec . 8(a)(1) of the Act. "As noted heremabove, the only information that Cross had with respect to Richardson was that Richardson made a vague remark to McLeod that his job would be in jeopardy , ostensibly if the Union were successful. Moreover, this remark was made when neither employee was on his working time but while they were waiting to punch the timeclock. As noted hereinabove, the only information that Cross had with respect to Weatherly was that he called Searight and asked for his and a fellow employee's address and telephone number , which information Seanght apparently only suspected was sought for union purposes. While it is realized that there is no clear definition of what constitutes solicitation, even among those well-versed in labor law , and it appears from the record that the employees were confused as to what constitutes solicitation , the action of Richardson and Weatherly could not reasonably have been understood by Cross to fall within the meaning of solicitation. In addition, Richardson's action occurred when neither he nor the other employee was on his working time. Cross, as manager of employee relations, appears to be somewhat sophisticated in labor law , as evidenced by his testimony that prior to discharging the employees he made a determination as to whether or not the no-solicitation rule had been enforced in the past . The inclusion by Cross of Richardson and Weatherly among the five who were discharged for violating the no-solicitation rule adds support to the finding that the motive for the discharge was not merely enforcement of the rule but rather to remove employees who Respondent knew, or suspected, were active on behalf of the Union "It is noted that the complaint was issued July 23 , 1968, and it is reasonable to assume that the mistake was discovered after an examination of the complaint. 785 be considered that the rule was as it appeared on the bulletin board between April 24 and July. While it may be that many employees were not aware of the difference between the two notices, it does appear that the term working hours is somewhat more ambiguous and even more likely to be interpreted as the Company' s working hours rather than employees' working time. In view of the finding hereinabove that the January 3, 1967, wording was violative of Section 8(a)(1) of the Act, it follows that the somewhat more ambiguous wording of April 24, 1968, is also violative of Section 8(a)(1) of the Act. Campbell Soup Company, 159 NLRB 74, 82.27 The Objection to the Election As indicated hereinabove, Case 11-RC-2707 was consolidated with 11 -CA-3611 for a hearing on Objection 1 with respect to the April 24 no-solicitation rule. It follows from the finding hereinabove that the rule was violative of Section 8(a)(1) of the Act that the objection is meritorious. While the record does not disclose what impact , if any, said unlawful rule had upon the election , it appears that "it is not necessary that it be proved affirmatively that the Union had difficulty with communicating with employees in order to find that the results of an election were affected by the rule since its very existence hampered legitimate organizational activity." Edmont Inc., 139 NLRB 1528, 1529. Consequently, it will be recommended that the election be set aside and a new election ordered. IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent , set forth in section III, above, occurring in connection with its operations set forth in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Y. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the Recommended Order below , designed to effectuate the policies of the Act.28 It having been found that Respondent discriminatorily discharged Carl R . Turner, David L. Richardson, Charles A. Weatherly, James A. McKnight, and Clarence P. Tallent, it will be recommended that Respondent be ordered to offer said employees immediate reinstatement to their former positions or substantially equivalent positions without prejudice to their seniority or other rights and privileges and reimburse them for any loss of pay suffered as a result of the discrimination against them in the manner set forth in F. W. Woolworth Co., 90 NLRB 289, 291-293 and Isis Plumbing & Heating Co., 138 NLRB 716. "Enforced with respect to the no-solicitation rule, 380 F.2d 372, 373 (C.A. 5). "Although Respondent changed its April 24, 1968, no-solicitation rule in July 1968 by reverting to the rule posted on January 3, 1967, nevertheless since the January 3 rule was also found invalid, it will be recommended that Respondent be ordered to cease and desist from promulgating, maintaining, and enforcing an unlawful no-solicitation rule 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It having been found that Objection I to the Election filed by the Union in Case It-RC-2707 is meritorious, it will be recommended that the election be set aside and a second election be held. Upon the basis of the foregoing findings of fact and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. The Company 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. 3. Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act by the following: (a) unlawfully interrogating employees with respect to their adherence to the Union by Cross, a supervisor; (b) threatening employees with economic reprisal for union activity by Supervisors Cross, Brinkley, and Clanton; (c) creating the impression of surveillance of employees' protected activity by Clanton. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging Carl R. Turner, David L. Richardson, Charles A. Weatherly, James A. McKnight, and Clarence P. Tallent. 5. From November 3, 1967, to April 24, 1968, Respondent maintained and enforced an unlawful no-solicitation rule which prohibited employees from engaging in solicitation on behalf of the Union at a time when neither of the employees involved was on his working time. 6. Commencing on April 24, 1968, Respondent promulgated and maintained an unlawful no-solicitation rule which prohibited employees from engaging in solicitation on behalf of the Union at a time when neither of the employees involved was on his working time. 7. Objection I filed by the Union to the election in Case 11-RC-2707 is meritorious. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Carl R. Turner, David L. Richardson, Charles A. Weatherly, James A. McKnight, and Clarence P. Tallent immediate reinstatement to their former positions or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered by them by reason of their discriminatory discharge in the manner set forth in the section hereinabove entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full employment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Upon request, make available to the Board and its agents for examination and copying all payroll and other records containing information concerning Respondent's backpay obligation under this Recommended Order. (d) Post at its plant in Sumter, North Carolina, copies of the attached notice marked "Appendix."" Copies of said notice on forms furnished by the Regional Director of Region 11, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.30 IT IS FURTHER ORDERED that the election heretofore held in Case 11 RC-2707 be set aside and a second election be held by ballot conducted for the employees subject to the Board's Rules and Regulations, as amended. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, it is ordered that Exide Alkaline Battery Division of ESB, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees with respect to their adherence to the Union or activities on behalf of it. (b) Threatening employees with economic reprisals for activities on behalf of the Union or adherence to it. (c) Creating the impression of surveillance of employees' protected activity. (d) Promulgating, maintaining , or enforcing a rule which prohibits employees from soliciting on behalf of the Union at a time when neither of the employees involved is on his working time. (e) Discouraging membership in the International Union of Electrical, Radio and Machine Workers, AFL-CIO, or in any other labor organization of its employees, by discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (1) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the Notice In the further event that the Board's Order is enforced by a decree of the United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that the 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 the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Exide Alkaline Battery Division of ESB, Inc., violated the National Labor Relations Act, and ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization EXIDE ALKALINE BATTERY DIV. OF ESB, INC. To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully question employees as to how they feel about the Union, International Union of Electrical, Radio and Machine Workers, AFL-CIO, or as to whether they are engaging in activities on behalf of the Union. WE WILL NOT threaten employees with any action that will affect their employment or their working conditions because they are in favor of the Union or because they are active on behalf of the Union. WE WILL NOT give the employees the impression that we are engaging in surveillance of the exercise of their above rights. WE WILL NOT promulgate, maintain , or enforce any rule prohibiting employees from soliciting on behalf of the Union, or any other labor organization, when neither of the employees involved is on his working time. WE WILL. NOT discourage membership in the aforesaid Union, or in any other labor organization, by discriminating against any of our employees in regard to the hire and tenure of their employment or any term or condition thereof. 787 WE WILL offer to Carl R. Turner, David L. Richardson, Charles A. Weatherly, James A. McKnight, and Clarence P. Tallent immediate reinstatement to their former positions, or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them by reason of their discriminatory discharge. Dated By EXIDE ALKALINE BATTERY DIVISION OF ESB, INC. (Employer) (Representative) (Title) Notify the above named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, Winston-Salem , North Carolina 27101, Telephone 723-2303.