Ostby & Barton Co.

OSTBY & BARTON CO. 199 Ostby & Barton Co. and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case 1-CA-8130 Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT March 5, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 24, 1972, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Ostby & Barton Co., Warwick, Rhode Island, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge and an amended charge filed on February 18 and March 8, 1972, respectively, the General Counsel of the National Labor Relations Board, for the Regional Director for Region 1 (Boston, Massachusetts), issued a complaint on May 12,- 1972, against Ostby & Barton Co., herein called the Respondent or the Company, alleging that it discharged employee Kenneth Maxwell on February 24, 1972, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, herein called the Act. The complaint further alleges various independent viola- tions of Section 8(a)(1). The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Adminis- trative Law Judge John P. von Rohr in Providence, Rhode Island, on June 22, 1972. Briefs were received from the General Counsel and the Respondent on July 25, 1972, and they have been carefully considered. 1. THE BUSINESS OF RESPONDENT The Respondent is a Rhode Island corporation with its principal office and place of business located in the city of Warwick, Rhode Island, where it is engaged in the manufacture, sale, and distribution of test probes, wire wrapping bits and sleeves, job shop and test fixtures, and the like. During the year 1971, Respondent received materials valued in excess of $50,000 which were shipped directly to it from points outside the State of Rhode Island During the same period it shipped products valued in excess of $50,000 from its Warwick plant to points and places located outside the State of Rhode Island. Respon- dent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(5) of the Act. H. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Discharge of Kenneth Maxwell Kenneth Maxwell was hired on December 18, 1971, and discharged on February 24, 1972. During his tenure of employment, he worked on the second shift, from 3 p.m. to midnight, in Respondent's wire trap department as a milling machine operator. Maxwell was one of several employees who became active in an organizational campaign among Respondent's employees which commenced in latter January or early February 1972.1 However, except for his involvement in the hereinafter described incident on the evening of his termination, there is no evidence whatsoever that Respon- dent had knowledge of any such activities by Maxwell. On the evening of February 24, the wire trap department was engaged in a job which included the production of 3,000 to 4,000 metal sleeves. It is undisputed that the production of this job had to be completed at the end of this shift due to the fact that inspection of the completed parts by the customer was to take place the following morning. As to his part in the production process, Maxwell was required to insert a metal piece into a milling machine which he operated and then wait a period of I to 1-1/2 minutes before inserting the next piece. Approximately 5 or 6 feet away from Maxwell's work station two other employees, Jeff Dillon and James Armente, were engaged in cleaning sleeves with rags and an air hose. Although their work was not directly related to Maxwell's, it also pertained to the rush job which had to be completed that evening. Concerning the events of February 24, Francis Killion, a group leader in the department, credibly testified that at I Unless otherwise noted, all dates hereinafter refer to the year 1972 202 NLRB No. 36 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 6 p.m. he observed Maxwell, between his operations, talking to Dillon and Armente while they were working. He said that this caused these employees to take their attention away from their work, causing them to "work and stop, work and stop." According to Killion, he thereupon went up to Maxwell and told him that "if he kept talking to these people, they wouldn't get this job done and I wouldn't get it out that night." Although Maxwell testified that he could not recall Killion coming up and speaking to him in this manner, Killion impressed me as a believable witness and I credit this testimony as aforesaid. A few minutes later Killion again observed Maxwell talking to the other two employees. This time he went up to James Grogan, the supervisor of the second shift, and reported his earlier observations and his conversation with Maxwell. According to the credited and corroborative testimony of Grogan and Killion, they both thereupon stood by for several minutes and watched Maxwell continue to talk to the two nearby employees. Both testified that Maxwell's talking interfered with the work of these employees in the manner related above. It is undisputed that at this point Grogan went over to Maxwell and warned him again. Concerning this conversation, the substance of which was admitted by Maxwell, Grogan credibly testified as follows: I walked over to Mr. Maxwell, and I told him that although he was doing his job, his conversation was interfering with the production of the other employees, and I wanted him to stop it. Mr. Maxwell, he said to me, "What do you want me, to stop talking now?" I said, "I'm not telling you to stop talking but at the present time, your conversation is interfering with production and I can't have it at the present time .. . I told Mr. Maxwell that the sleeves had to be out that night, and it was important that we have them finished that night, that we had to have them ready for the first thing in the morning. Although Respondent maintains a cafeteria for the employees in its plant, a number of employees customarily bring their own food and eat at a table which is located in the center of the work area in the wire trap department. The dinner period on the second shift is from 7:30 to 8 p.m. At about the beginning of the dinner break on the evening in question, Maxwell was seated at the table with employees Henry Cochrane and Julio Madieros. Standing next to them at the table were two new employees who had just started that evening, the aforementioned James Armente and also one Ronald Guertin. It is undisputed that at this time Cochrane (whom the record discloses to have been the leading union organizer) and Maxwell were in the process of soliciting Armente and Guertin to sign a union card. Cochrane finally handed them cards2 and the two new employees bent over the table to begin filling them out. It was at this point that Superintendent Grogan 2 Testimony of Cochrane 3 Maxwell conceded that he was still in the aisle talking to Guertin and Armente about "a minute" after 8 o'clock a A copy of the speech, which was read to the employees by Pfeifer, was introduced in evidence While the contents clearly reveal Respondent's opposition to the Union, there quite properly is no allegation that any of the came upon the scene and walked past the table. Although nothing was said between Grogan and the employees, Grogan conceded that he saw Armente sign a union card and hand it to Cochrane. However, while admitting to seeing Cochrane and the two new employees, Grogan testified that he did not observe the presence of Maxwell or Madieros. The testimony of Maxwell and Cochrane reflects that Grogan approached so close to them that he could hardly help but observe all of those present. I am inclined to believe this to be true and shall proceed on the basis that Grogan did observe the presence of Maxwell at the table during the incident in question. A warning buzzer is sounded at 7:55 reminding employ- ees to be back at work at 8 p.m. Grogan testified that at about 8:02 p.m. he came out of the cafeteria and saw Maxwell talking to employees Armente and Guertin. Although it was after 8, all three of the employees concededly were standing in the aisle and were away from their work stations.3 It is undisputed that Grogan there- upon went up to Maxwell and told him that he was discharged. Although Maxwell testified that Grogan did not give him any reason for the termination, Grogan credibly testified that he told Maxwell that he had been warned previously that evening about interfering with production and that therefore he was being fired. Grogan thereupon explained the meaning of the buzzer system to Guertin and Armente, both of whom had just been hired that night, and told them that thereafter they must be at their work stations by 8 p.m. B. Additional Facts; Conclusions as to Maxwell's Termination The General Counsel points to a combination of several factors in support of his contention that Maxwell's discharge was violative of Section 8(a)(3). First, he notes that Respondent was opposed to the Union and that hence a motive existed for the alleged discrimination. As evidenced by an antiunion speech given by Respondent President Warren Pfeifer to the employees on February 14, there can be no doubt but the General Counsel' s initial premise is correct in this regard.4 Secondly, the General Counsel introduced in evidence Respondent's Employees Manual which sets forth certain disciplinary steps to be taken for breaches of Company rules or various other offenses.5 The sequence of these disciplinary steps, he correctly points out, were not strictly adhered to in the case of Maxwell's termination. Finally, as to Maxwell's talking to employees after the dinner period had expired and working hours had started, and notwithstanding the fact that he had been cautioned by the leadman and warned by the superintendent earlier that evening for having engaged in the same type of conduct, the General Counsel argues that Respondent, having observed Maxwell's activities during the dinner hour, seized upon the last talking statements contained therein were coercive or exceeded the bounds of free speech 5 With respect to insubordination or deliberate interference with production , the rules provide as follows first offense-verbal warning, second offense-written warning, third offense-3-day layoff, fourth offense-dismissal OSTBY & BARTON CO. 201 incident as a pretext for discrimination against him. Upon the entire record in this case, I cannot agree. Without question the most important single element in this case is the fact that on the evening in question Maxwell was twice warned not to interfere with production before the dinner penod. Obviously unrelated to Maxwell's subsequent union activities, it is clear that by these warnings Respondent demonstrated that it indeed was concerned that Maxwell's conduct was interfering with the needed production that evening. Maxwell, however, disregarded these warnings and instead chose to engage in the same type of conduct after the end of the dinner hour. It was at this point, upon being so observed, that he was spontaneously discharged. Under the circumstances, I think it quite understandable that the superintendent took this action without literally following the book. In any event, insofar as the rules are concerned, the record reflects that Respondent in the past had not paid strict adherence to the rules, indeed that it had previously discharged employees "on the spot" and without written warning .6 I have previously stated that in all probability Grogan observed Maxwell at the table when he admittedly observed Cochrane's participation in signing up the two new employees. In this connection, however, I should point out that Maxwell and Cochrane gave exaggerated testimo- ny as to the extent of Maxwell's participation in this activity. Thus, Maxwell testified, "I helped them fill them [the cards] out and sign them"; and Cochrane testified, "Mr. Maxwell was standing behind them and he helped them fill out the cards." As it developed, however, Maxwell did not in fact lend assistance to these employees in the actual filling out the cards. It was Cochrane who handed the employees the cards and the pen and it was to him that they were returned. At best, Maxwell at one point orally told the employees, who were standing, how to spell the word "Ostby" and there is no indication at all that this was observed or heard by the foreman.? In any event, and assuming Grogan to have observed the incident and that he thereby had reason to believe that Maxwell was a union supporter, I am not persuaded that the reason given by Respondent for Maxwell's discharge was, as the General Counsel contends, a pretext for alleged discrimination. In short, I find that the General Counsel has not established by a preponderance of the evidence that Maxwell was discharged in violation of Section 8(a)(3) and (1) of the Act. Accordingly, I recommend that this allegation be dismissed. C. The 8(a)(1) Violations It is undisputed that on February 25 President Pfeifer held separate conversations with employees Henry Co- 6 1 would further point out that even the employee manual reflects that the rules set forth therein were not intended to be rigidly followed Thus, with reference to the rules previously referred to in In 5, par C at p 20 states "These rules and recommended disciplinary action are as follows (Emphasis supplied) 7 At another point Maxwell testified "They were filling out cards and I was watching them I don't know if he [Grogan I heard anything at all " 8 In somewhat ambiguous testimony, Maxwell asserted that during his conversation with Pfeifer, Pfeifer stated that he would bring "personal charges" against him I credit Pfeifer's denial that he did not make any such statement chrane and Thomas Riley during which he told them he had reports from other employees that they had been soliciting cards during company time and that they should stop this activity on company time. Pfeifer testified that he talked to these employees in this manner because this had been reported to him by one of his supervisors. Cochrane and Riley denied that they ever solicited on company time; it was their testimony that they also advised Pfeifer of this when he spoke to them as aforesaid. In any event, the record is clear that Pfeifer did not, in speaking to these employees, interrogate them or threaten them concerning union activities. I find that Pfeifer did not engage in conduct violative of Section 8(a)(1) in either of these conversations.8 Employee Ronald Guertin (no longer employed by Respondent) testified that on February 25 he and employ- ee James Armente were called to the office by Foreman Steve Lynch for the purpose of filling out W-2 forms. Guertin testified without contradiction that while they were in the office Lynch spoke to them as follows: Yes, he [Lynch] told us that-he just asked us if we signed a union card, so we said yes, and he said he knew that we signed them, and not much after that. He dust says he knew that we signed the cards and that the Union, if they did get a union in there, they didn't want part-timers, and he said that the union wants steady hours, and I was working all different hours, so he says, "If they had a union there" that I wouldn't have my job anymore, because of the hours that I was working. From the above undenied testimony it is clear, and I find, that Respondent coercively interrogated Guertin and Armente concerning their union activities in violation of Section 8(a)(1) of the Act.9 Respondent's employees manual, under the heading "Solicitation," sets forth the following rules: 1. Solicitation for any purpose is not permitted as protection to employees. 2. Taking of orders or selling of any tickets or merchandise is not permitted. 3. The only exception is a Community sponsored project such as the United Fund. Respondent concedes that as a matter of law the above no-solicitation rule is overly broad on its face. Unlike the situation in The Lion Knitting Mills Company 160 NLRB 805, relied upon by Respondent, the record here does not demonstrate that, notwithstanding the rule, Respondent permitted widespread solicitation either during working or nonworking hours. Although it appears that Respondent has not engaged in recent distribution of the employees manual, there is no evidence that Respondent has ever recalled the manuals previously distributed or that it notified the employees that the rules promulgated in the 9 Although I am persuaded that this incident warrants the remedial relief provided herein, I do not believe that this single incident warrants the further finding, as alleged in an amendment to the complaint, that Respondent "gave to its employees the impression of surveillance of their union activities" In this connection, the complaint also alleges that Supervisor Grogan engaged in unlawful surveillance of the employees' union activities I find the evidence does not support this allegation of the complaint Surely, absent an intent to violate the Act, an employer has the right to observe the conduct of employees on its own premises In my view, the evidence does not reflect that Grogan exceeded this right on the evening of February 24 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manual were no longer in effect I find that under Walton Manufacturing Company, 126 NLRB 697, enfd 289 F.2d 117 (C.A.5), the rule is violative of Section 8(a)(1) of the Act. Whether or not the rule was recently enforced, the Board in similar cases has deemed it necessary to take appropriate remedial action See Zenith Radio Corporation of Missouri, 172 NLRB 1724; and Levi Strauss & Co ,172 NLRB 732. Furthermore, I think that President Pfeifer's discussion with employees Cochrane and Riley concerning the subject of Respondent's no-solicitation rule, as previously set forth, is an additional reason that Respondent be required to revise its rule to comply with the law and to so notify the employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. United Rubber, Cork, Linoleum and Plastic Workers of America, or any other labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant in Warwick, Rhode Island, copies of the attached notice marked "Appendix." I' Copies of said notice, on forms provided by the Regional Director for Region I of the National Labor Relations Board, after being duly signed by Respondent's authorized representa- tive shall be posted by Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (b) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act 2. By coercively interrogating employees concerning their union activities and sentiments ; and by publishing and maintaining in effect the solicitation rule appearing on page 25 of its Employees Manual , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not violated the Act by its termina- tion of Kenneth Maxwell. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby make the following recommended: 10 ORDER Respondent, Ostby & Barton Co., its officers, agents, successors, and assigns, shall: I Cease and desist from: (a) Coercively interrogating its employees concerning their union activities or sentiments. (b) Publishing or maintaining in effect any rule or regulation prohibiting employees during nonworking time from soliciting their fellow employees to join or support iU In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and order and all objections thereto shall be deemed waived for all purposes ii 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employees concerning their union activities or sympathies. WE WILL NOT publish, maintain in effect, or enforce any rule or regulation prohibiting employees during nonworking time from soliciting their fellow employees to join or support United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any other labor organization. WE WILL forthwith rescind our existing rule against solicitation as published in our employee handbook to the extent that it prohibits employees from soliciting membership in a union organization during nonwork- ing time on our premises. OSTBY & BARTON CO 203 WE WILL NOT in any like or related manner restrain This is an official notice and must not be defaced by or coerce employees in the exercise of their rights under anyone. the National Labor Relations Act. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, OSTBY & BARTON Co. or covered by any other material . Any questions concern- (Employer) ing this notice or compliance with its provisions may be directed to the Board 's Office, Seventh Floor, Bulfinch Dated By Building, 15 New Chardon Street , Boston , Massachusetts (Representative) (Title) 02114, Telephone 617-223-3300.