Detroit Plastic Molding Co.

DETROIT PLASTIC MOLDING CO. Detroit Plastic Molding Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-10398 March 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Upon a charge filed on May 24, 1973, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Detroit Plastic Molding Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and amended com- plaint on July 2 and July 27, 1973, respectively, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that commencing on or about November 25, 1972, Respondent has maintained two no-solicitation rules, hereafter called the November rule and the June rule, unlawfully broad in scope. On July 9 and August 3, 1973, respectively, Respondent filed its answer and amend- ed answer to the complaint, admitting in part, and denying in part, the allegations in the complaint. On September 13, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 26, 1973, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed its Response to Notice To Show Cause and Cross-Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 1 The November rule states, "There will be no union activity, solicitation, or passing out of literature during any employee's working time or in any work area Also, no union activity or solicitation can take place and neither literature nor printed matter can be passed out on company property in any work area by any employee or union agent. Any offender will be discharged." 2 The June rule states, "There shall be no solicitation of any nature by any employee in any work area during employees' working time, nor shall 763 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motions for Summary Judgment The amended complaint alleges that the Respon- dent posted on its bulletin boards and published in its employee handbook two allegedly unlawful no- solicitation rules hereinafter referred to as the November i and June 2 rules, respectively. Since the Respondent admits the posting and publication of the rules, the General Counsel asserts that he is entitled to have his Motion for Summary Judgment granted. In its opposition to the General Counsel's motion and in support of its Cross-Motion for Summary Judgment, the Respondent alleges that not only have these rules never been enforced but also that (1) the admittedly unlawful November rule had been only inadvertently included in the revised employee handbook and posted on the bulletin board during the period between November 25, 1972, and late May 1973, when the matter was called to the Respondent's attention and the unlawful language was deleted from the handbook; and (2) the June rule is lawful because it was first promulgated in 1967 in compliance with Trial Examiner Nachman's Decision3 in Case 7-CA-5806 and with the accept- ance of Region 7's Compliance Officer and it had been maintained until November 1972; and, in any event, this June rule, which was reissued4 after the November rule had been deleted, was rescinded a month later when a Board agent questioned its legality under the Board's recent Avon precedent.5 The Respondent, therefore, argues that an unfair labor practice finding or remedial order is not warranted. We find merit in the Respondent's position. The pleadings and documents filed herein by the Respondent and General Counsel reflect that Trial Examiner Nachman had occasion earlier to consider the legality of the November no-solicitation rule. In his Decision of April 17, 1967, he found that the Respondent violated Section 8(a)(1) of the Act by promulgating a rule, identical with the November rule, which prohibited solicitation on an employee's nonworking or free time and thereby contravened there be any distribution of any literature or other printed matter in any work area at any time." 3 The title of "Trial Examiner" was changed to "Administrauhe Law Judge" effective August 19. 1972 4 Minor changes were made in the 1967 rule ; the June rule, as alleged in the complaint, had added to it the words "by any employee' and "employees." 5 Avon Convalescent Center, Inc., 200 NLRB No. 99. 209 NLRB No. 136 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the guidelines set forth in Stoddard-Quirk Manufac- turing Co., 138 NLRB 615. The Trial Examiner's Decision and recommended Order were adopted by the Board because the Respondent did not file exceptions . Instead, Respon- dent adopted the June rule prohibiting solicitation "of any nature in any working area during working time." The rule was submitted to, and accepted by, the Compliance Officer for Region 7 . The Respon- dent alleges that it and Region 7 agreed that the rule "complied with the National Labor Relations Act." This rule was in existence for 5 years from 1967 to November 1972, when the employee handbook was revised, and, through a clerical error, came to include the November rule which subsequently was posted on the bulletin board. When the unfair labor practice charge herein , filed on May 24, 1973, brought the error to the Respondent's attention, the unlawful November rule language was promptly deleted from the handbooks , and the Respondent reissued and reposted the June rule which had previously been in effect for 5 years without being questioned and without being enforced. Shortly thereafter, a Board agent from Region 7 indicated that, in his view, the above reposted rule was not lawful under the Board's recent decision in Avon, supra. Accordingly, while not conceding that the rule was illegal, the Respondent immediately rescinded it and substituted a new rule which is presently in effect at the Respondent's plants. There is no allegation that the present rule is unlawful. In American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620, the Board had before it the question of the legality of a union's threat to bring charges against, and fine, a supervisor. The Board panel found that while precedent indicated that the conduct would other- wise be found to violate Section 8 (b)(1)(B) of the Act and require a remedial order the conduct was so minimal and had been so substantially remedied by the union's subsequent conduct, that neither the finding of a violation nor the issuance of a remedial order was warranted. We believe that the Wakely precedent is applicable herein.6 As set forth above, the Respondent's admittedly unlawful November rule had not been in existence for 5 years prior to November 1972 when it inadvertently was published through clerical error. When the error was called to the Respondent's attention in May 1973 , it promptly rectified it by deleting the rule from the handbooks and reissued the rule which had originally been published in 1967 with the acquiescence of Region 7's Compliance Officer. Apparently, the rule was considered to be legal and was not questioned during its posting for years. However, a month later in June 1973 the reissued rule was rescinded when a Board agent questioned its legality under Avon, supra. Neither the November rule, which was inadvertently posted for about 6 months, nor the June rule, which was considered to be lawful and which had been in existence for over 5 years, had been enforced against the employees. In all these circumstances, it is unnecessary to determine whether the past mainte- nance of the November and June rules might otherwise violate Section 8(a)(1) of the Act, because we believe that their maintenance was so minimal and isolated in character that it does not furnish a sufficient basis for either a finding of a violation of the Act or the issuance of a remedial order. Accordingly, we shall deny the General Counsel's Motion for Summary Judgment and grant the Respondent's Cross-Motion for Summary Judgment and dismiss the amended complaint in its entirety. FINDINGS OF FACT 0 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its principal office and place of business at 18125 E. Ten Mile Road in the city of East Detroit and State of Michigan, herein called the East Detroit plant. Respondent has, at all times material herein, maintained another place of busi- ness at 15201 Eleven Mile Road in the city of Roseville and State of Michigan, herein called the Roseville plant. Respondent is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of plastic products and related products. During the year ending December 31, 1972, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its East Detroit and Roseville plants plastics and other goods and materials valued in excess of $100,000 of which goods and materials valued in excess of $50,000 were transported and delivered to its plants in East Detroit and Roseville, Michigan, directly from points located outside the State of Michigan. During the same year, Respondent sold and distributed products valued in excess of $500,000 of which products valued in excess of $50,000 were shipped from said plants directly to points located outside the State of Michigan. 6 See also Witchila Eagle & Beacon Publishing Co., Inc, 206 NLRB No. 16. DETROIT PLASTIC MOLDING CO. 765 We find, on the basis of the foregoing, that Respondent 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. amended complaint herein, does not violate Section 8(a)(1) of the Act. ORDER - II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Implement Workers of Ameri- ca (UAW), is a labor organization within the meaning of Section 2(5) of the Act. CONCLUSIONS OF LAW The conduct of the Respondent, as alleged in the It is hereby ordered that the General Counsel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that Respondent's Cross- Motion for Summary Judgment be, and it hereby is, granted. IT IS FURTHER ORDERED that the amended com- plaint be, and it hereby is, dismissed in its entirety.