The Goodyear Tire & Rubber Co.

THE GOODYEAR TIRE & RUBBER CO. 33 The Goodyear Tire & Rubber Co. (Zone Accounting Office) and Office and Professional Employees In- ternational Union, AFL-CIO-CLC. Case 10-CA- 8983 January 24, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 22, 1971, Trial Examiner Joseph I. Nachman issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Boad has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that The Good- year Tire & Rubber Co. (Zone Accounting Office) At- lanta, Georgia, and its officers, agents, successors, and assigns shall take the action set forth in the Trial Ex- aminer's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This case was tried before me, with all parties present and duly represented, at Atlanta, Georgia, on July 11,' on a complaint pursuant to Section 10(b) of the National Labor Relations Act (herein the Act).' The basic issue is whether a rule admittedly promul- gated and posted by The Goodyear Tire & Rubber Co. (herein Respondent or Company), on February 22, in the course of an organizational campaign among the employees of its Atlanta, Georgia, zone accounting office, by Office and Professional Employees International Union, AFL-CIO- CLC (herein the Union), restrained and coerced employees in the exercise of rights protected by Section 7 of the Act. Addi- tionally, the complaint alleges and Respondent denies that it (1) interrogated employees concerning their union member- ship, desires, and activities, and the membership, desires, and activities of other employees, and (2) threatened to install a timeclock and be more restrictive in permitting employees time off for personal reasons if the Union was successful in its organization campaign. For reasons hereafter more fully stated I find and conclude that the General Counsel sustained This and all dates mentioned herein are 1971 unless otherwise stated Issued June 17, on a charge filed and served May 6 the material allegations of the complaint, and that an appro- priate remedial order should issue. At the trial, all parties were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally on the record, and to submit briefs. The General Counsel waived oral argument. Oral argument by counsel for Respondent is included in the transcript. Briefs submitted by the General Counsel and Respondent have been duly considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACTS At some time prior to February 22, the Union began a campaign to organize the employees in Respondent's zone accounting office. On the last mentioned date Respondent posted on its bulletin board the following notice: NOTICE TO ALL EMPLOYEES MANAGEMENT HAS RECEIVED COMPLAINTS FROM CERTAIN EMPLOYEES THAT THEY ARE BEING HARASSED BY CERTAIN OTHER EMPLOYEES IN CONNECTION WITH THE ESTABLISHMENT OF A UNION BARGAINING UNIT THIS IS TO ADVISE ALL EMPLOYEES THAT THEY ARE NOT PERMITTED BY LAW TO ENTER INTO ANY ORGANI- ZATIONAL ACTIVITY DURING LEGALLY ACCEPTED WORK PERIODS FOR WHICH THE COMPANY PAYS WAGES. THIS PRACTICE IS NOT PERMITTED UNDER THE LAW AND CANNOT BE PERMITTED BY THE GOODYEAR TIRE & RUBBER COMPANY THIS IS TO FURTHER WARN THAT IF THIS ACTIVITY IS CONTINUED, PARTICIPATING EMPLOYEES WILL BE SUB- JECT TO DISCIPLINARY ACTION BY THE COMPANY W E CREECH MANAGER ZONE ACCOUNTING Before posting the notice Creech assembled the employees and read the notice to them. Except for reading the notice, Creech made no statement concerning its meaning, scope, or the manner in which it would be applied or enforced. Testify- ing as witness, Creech admitted that he regards the rule as applicable to all parts of the Company's premises, including the parking lot, during the hours for which it pays wages, and this would include any period of time employees were away from their work station, including unscheduled breaks for use of restrooms. Creech also admitted that the Company per- mits employees to take a lunch period, and a coffee break each morning and afternoon, and that the Company pays for this time. He testified that the Company does not regard the rule as applicable to such paid breaks, and that during such peri- ods the employees are free to engage in union activity any- where on company premises, and that no attempt has been made by management to prevent employees from doing so. Creech admitted, however, that no information in that regard has been given to the employees, other than the posted no- tice.' ' No issue of commerce or labor organization is presented The complaint alleges and answer admits facts which establish these jurisdictional ele- ments I find these facts to be as pleaded Employee Beck testified that when the rule was read to the assembled employees just prior to its posting, she asked Operating Manager Wheatley, an admitted supervisor, whether the rule applied to both prounion and antiunion employees, and that it "seemed" to her that Wheatley said that it applied only to those who worked for the Union Wheatley admits that Beck put the question to him but claims that he replied that the rule applied (Cont.) 195 NLRB No. 19 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions Regarding Rule For many years the Board, with Court approval, had held that an employer may not restrict the right of employees to solicit and distribute literature on behalf of a union on the employer's property, unless justified by the circumstances of the case, and that unless justified such restriction is coercive and a violation of Section 8(a)(2) of the Act. See Peyton Packing Co., 49 NLRB 828; N.L.R.B. v. Republic Aviation Corporation, 324 U.S. 793. In Stoddard-Quirk Manufactur- ing Co., 138 NLRB 615, the Board set forth guidelines for determining, at least presumptively, to what extent an em- ployer may lawfully prohibit his employees from soliciting and distributing on behalf of a union while on company prop- erty. With respect to solicitation, the Board there held that unless the right to effective oral solicitation is to be virtually nullified, absent special circumstances, the right of employees to "solicit on plant premises must be afforded subject only to the restriction that it be on nonworking time" (138 NLRB at 621). On the other hand, because it viewed the distribution of literature to be a "different technique and posing different problems," employees' organizational rights in that regard, the Board concluded, "require only that employees have ac- cess to nonworking areas of the plant premises" (id). It is by these principles that the lawfulness of the rule promulgated and maintained by Respondent must be judged, but in this connection it must be borne in mind that time provided by the employer for meal or rest breaks, although within the employee's overall hours of duty, and though paid for by the employer, is not "working time," but "nonworking time," and hence the employee is free to solicit or engage in other lawful activity during that period, within the meaning of Stoddard-Quirk. See Saco-Lowell Shops, etc., 169 NLRB 1090, 1093, and the cases there cited. Considering first the rule to the extent it prohibits solicita- tion, not only may it be interpreted as proscribing union activity by nonworking employees during times that Re- spondent is paying wages to other employees who are work- ing, but its prohibition clearly extends to all "normal work periods for which the Company pays wages." As Respondent admits that it pays wages for the lunch period, and for the morning and afternoon breaks, which as indicated above is "nonworking time," the plain meaning of the rule is that solicitation is prohibited during such break periods, and at least to that extent is an unlawful limitation upon employees' rights, absent extraordinary circumstances the existence of which Respondent does not urge. The fact that Respondent does not regard or intend the rule to be applicable to the meal and other break periods in no way diminishes the nature and extent of the violation. Considered in a light most favorable to Respondent, the most that can be said is that the rule is ambiguous, but even that does not advance its position. For, as said by Judge Hayes speaking for Second Circuit in N.L.R.B. v. Miller-Charles & Co., 341 F.2d 870, 874, in language fully applicable here;' The true meaning of the rule might be the subject of grammatical controversy. However, the employees of Respondent are not grammarians. The rule is at best ambiguous, and the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it. to both union and nonunion sympathizers In view of Wheatley's positive denial, and Beck's uncertainty as to exactly what Wheatley did say, I credit Wheatley ' In Miller-Charles, supra, the rule prohibited "union solicitation on com- pany time and on company property," 148 NLRB at 1580 Additionally, the rule here involved fails to meet the Stod- dard-Quirk test for a valid rule prohibiting distributions of literature, which is certainly a type of "organizational ac- tivity" which the rule prohibits . Although an employer may lawfully prohibit distribution in work areas , he may not pro- hibit distribution in nonwork areas during an employee's nonworking time . As Creech admitted that the rule in ques- tion applied to the parking lot, it is clear that an employee who utilized his lunch or break period to distribute literature among parked employee cars would be in violation of the rule, a result plainly inconsistent with the test of Stoddard- Quirk. Accordingly for the reasons stated , I find and conclude that by promulgating and maintaining the aforesaid rule, Re- spondent interfered with , restrained, and coerced its em- ployees in the exercise of rights guaranteed them by Section 7 of the Act.' The Allegations of Interrogation and Threats Diane Beck, employed by Respondent as a key punch verifier, credibly testified that on May 4, during her duty hours and while discussing some work with fellow employee Joyce Phillips, she asked the latter whether she had signed a union card. The following day Beck was called to Supervisor Wheatley's office on three occasions. On the first occasion at about 8:30 a.m. there were present, in addition to Wheatley and Beck, Beck's immediate supervisor, Pryor, and employee Phillips. Because, as Beck described it, everyone was trying to talk at once, Wheatley asked her to leave the room and return to work, which she did. The testimony is uncon- tradicted that at this meeting no reference was made to the Union by anyone. About 10 a.m., Beck was directed to return to Wheatley's office, and only those two were present. Wheat- ley stated that the problem the preceding day resulted from the fact that Beck asked Phillips to sign a Union card, and reminded Beck of the posted rule against solicitation and cautioned her that she must comply with it. Beck responded that her inquiry of Phillips about the Union card was not the cause of the problem; that the problem arose because she had to discuss with Phillips some work which the latter had not properly performed. At this point Wheatley dismissed Beck and directed her to return to work. At about 11: 15 a.m. Beck was again summonded to Wheat- ley's office. On this occasion, Wheatley and Beck first dis- cussed some matters wholly unrelated to her work, but Wheatley finally told Beck that he wanted to discuss the Union with her. Beck replied that it was her understanding that she was not to do so on company time. Wheatley replied that such discussion was not improper if he were asking the questions. Wheatley then asked Beck why she thought she needed a union, why other employees wanted a union, and if wages was the problem. Beck replied that wages was not the main concern, but that other zone offices had received raises while the Atlanta office had not. At this point Creech entered the room and remained for the rest of the discussion. Wheat- ley then commented that in the past he worked for a company that had a union, and added that if employees of the Atlanta office selected a union, Respondent would have to install a timeclock, because the Union would require it, and that em- ployees would not be able to take time off for personal reasons Having reached this conclusion, it becomes unnecessary to decide whether, as the General Counsel contends, Respondent promulgated the rule in question with a discriminatory motive, or that the rule was applied by Respondent in a discriminatory manner Assuming that both of such contentions should be resolved in favor of the General Counsel, the order to be entered would be in all respects the same as the one I shall recommend as a remedy for this violation THE GOODYEAR TIRE & RUBBER CO. without being docked for it, in contrast to its prior practice of exercising its discretion whether to dock employees or not. Later in the day Beck was given a memorandum signed by Creech which stated in substance that Beck's approach to Phillips, during company time, about signing a Union card was a violation of the posted rule; that Respondent could not and would not permit such activity; and that it expected her to refrain from it.' Conclusions with Respect to Allegations of Interrogation and Threats Having credited the testimony of Beck, it follows that Wheatley's questioning of Beck as to "why she thought she needed a union" and "why other employees wanted a union," constitutes interrogation proscribed by Section 8(a)(1) of the Act. As the Board said in Engineered Steel Products, Inc., 188 NLRB No. 52: Questioning selected employees about their union sym- pathies without any legitmate reason therefor and with- out any assurance against reprisal, by its very nature tends to inhibit employees in the exercise of their right to organize. To the same effect see Essex Wire Corpora- tion, 188 NLRB No. 59. In the instant case I am unable to conceive of, nor does Respondent claim, any legiti- mate reason for interrogating Beck, and it is clear that no assurances against reprisal were given. It likewise follows that Wheatley's statement to Beck that if the Union became the collective-bargaining representative of Respondent's employees it would have to install a timeclock and be more restrictive in permitting em- ployees to take time off for personal reason without loss of pay was a violation of Section 8(a)(1) of the Act. For all practical purposes Wheatley's statement was simply a threat to impose more onerous working conditions upon employees if they selected a bargaining representa- tive. Such a threat is plainly violative of Section 8(a)(1) of the Act.' Upon the foregoing findings of fact, and the entire record in the case, I make the following: ' Based on the credited testimony of Beck Wheatley denied that he asked Beck why she or any other employee wanted a union He admits that he told Beck that if he could see where employees would benefit from a union he could better understand why they would be for it, and that this statement was made twice in the course of his discussion with Beck He also denied that he told Beck that the advent of the Union would cause Respond- ent to install a timeclock According to Wheatley it was Beck who raised the discussion about a timeclock, by asking if there would be one if the Union came in, and claims that he told her that while there were timeclocks in some Goodyear plants, he had no way of knowing if one would be installed in the Atlanta office Wheatley further admits that in his discussion with Beck about the timeclock, she stated that the Union would not insist upon a timeclock but could not recall what precipitated her statement and also admitted that in talking with Beck the subject of time off for personal reasons was discussed, but that he "really [didn't] remember too much about that conversation " In his pretrial affidavit Wheatley admitted that under company policy it was discretionary with management whether to dock employees for taking time off for personal reasons To the extent that the testimony of Wheatley and Beck are in conflict, I credit the latter The General Counsel urged at the trial that Wheatley's oral reprimand to Beck for soliciting on working time, as well as the subsequent written reprimand given to her by Creech for the same conduct, violated Section 8(a)(1) of the Act. However, as the issue is not discussed in his brief, I assume that he has abandoned the point, and for that reason I make no findings with respect thereto. 35 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act 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. By promulgating and maintaining the rule posted on February 22, by interrogating Beck, and by threatening to install a timeclock and adopt a more restrictive time-off policy if the employees selected union representation, Re- spondent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by Section 7 of the Act and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor parctices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act, it will be recommended that it be required to cease and desist there- from and take certain affirmative action designed and found necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I hereby issue the following recommended:' ORDER Respondent, The Goodyear Tire & Rubber Company, At- lanta, Georgia, zone accounting office, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees with respect to their sympathies for and activities on behalf of any labor organization. (b) Threatening employees with the installation of a time- clock, or the institution of a more restrictive time-off policy, if they select a collective-bargaining representative. (c) Promulgating, maintaining in effect, enforcing, or ap- plying any rule or regulation prohibiting its employees from soliciting on behalf of any labor organization during their nonworking time, in any area of its plant, or in distributing literature during their nonworking time, on behalf of any labor organization, in any nonworking area of its plant. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist Office and Professional Employees International Union, AFL-CIO-CLC, or any other labor organization, to bargain collectively through rep- resentative of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Forthwith rescind its rule promulgated February 22, 1971, to the extent that it prohibits its employees from solicit- ing on behalf of a labor organization during their nonworking time in any area of its plant, or in distributing literature 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 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during their nonworking time, on behalf of a labor organiza- tion, in nonworking areas of its plant. (b) Post at its zone accounting office in Atlanta, Georgia, copies of the notice attached marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 10 of the National Labor Relations Board (Atlanta, Georgia), shall, after being signed by an authorized represent- ative of Respondent, be posted immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken to insure that said notices are not altered, defaced or covered by any other material. (c) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith." 10 In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified by deleting the words "receipt of this Decision ," and substituting therefor the words "this Order." plant, or from distributing literature on behalf of the afore- said or any other union, in nonworking areas of our plant, during their nonworking time. WE WILL NOT promulgate, maintain in effect, enforce, or apply any rule or regulation which prohibits our em- ployees from soliciting on behalf of any union during their nonworking time in any area of our plant, or in distributing literature on behalf of any union in any nonworking area in our plant during their nonworking time. WE WILL NOT coercively interrogate our employees regarding their sympathies or desires for, or their activi- ties on behalf of, any union. WE WILL NOT threaten our employees with the instal- lation of a timeclock or the institution of a more restric- tive time-off policy if they select a union as their collec- tive-bargaining representative. Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed to them by Section 7 of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all parties had the opportunity to present their evidence, it has been decided that we, the Good- year Tire & Rubber Company, violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board, the judgment of any court, and abide by the following: THE WORK RULE we promulgated on February 22, 1971, is now revoked and rescinded to the extent that it prohibits our employees from soliciting on behalf of Office and Professional Employees International Union, AFL-CIO-CLC, or any other union, during their nonworking time in any area of our THE GOODYEAR TIRE & RUBBER COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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, Peachtree Building Room 701, 730 Peachtree Street, N.E. Atlanta, Georgia 30308, Telephone 404-526-5760.