Essex International, Inc.

ESSEX INTERNATIONAL, INC. 749 Essex International, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Petitioner. Case 7-RC-1 1513 June 19, 1974 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Stipulation for Certification Upon Consent Election executed on January 8, 1973, an election by secret ballot was conducted on February 1, 1973, under the direction and supervision of the Acting Regional Director for Region 7, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 423 eligible voters, 395 cast ballots of which 155 were for, and 238 against, the Petitioner, and 2 were chal- lenged. The challenged ballots were not sufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. The Acting Regional Director, on February 14, 1973, issued a notice of hearing on objections to resolve the issues raised by said objections. Pursuant thereto, a hearing was held before Hearing Officer Sandra J. Rice and, thereafter, on May 24, 1973, the Hearing Officer issued and served on the parties her Report on Objections. In her report, the Hearing Officer recommended to the Board that Petitioner's Objections 3, 4, 5, 6, 7, and 9 be overruled in their entirety, that the withdrawal of Objection 10 be approved, and that Objections 1, 2, and 8 be sustained. She further recommended that the results of the election be set aside and that the case be remanded to the Acting Regional Director for the purpose of permitting him to conduct a second election. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report and a brief in support thereof, and the Petitioner filed cross- exceptions together with a brief in support thereof and in reply to the exceptions filed by the Employer.' Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its facility located at Atlanta, Michigan; but excluding office clerical employees, technical employees, engineering em- ployees, professional employees, confidential employees, foremen, assistant foremen, timekeep- ers, watchmen, watchmen-custodians, truckdri- vers, senior inspectors, leaders, dispatchers, guards and supervisors as defined in the Act. 5. The Board has considered the Hearing Offi- cer's report and the Employer's exceptions thereto, and the briefs. In the absence of valid exceptions, we adopt pro forma the Hearing Officer's recommenda- tions as to overruling Objections 3, 4, 5, 6, 7, and 9, and the withdrawal of Objection, 10. However, we do not agree with the Hearing Officer's recommenda- tion that Petitioner's Objections 1, 2, and 8 be sustained, and that the election therefore be set aside. Objection 1 alleges that the Employer's no-solicita- tion and no-distribution rules are invalid in that they could be interpreted to prevent union solicitation and/or distribution by employees during their paid, nonworking time. These rules, which appear in the Employer's current "Policies Practices Manual," set forth the following prohibitions: 4. Solicitation for any cause during work time without permission. 5. Distribution of literature during, working hours or in work areas without permission. Also appearing in the manual in a separate section from the above under the heading "SOLICITA- TIONS" is a statement indicating that "distribution of any literature in work areas or during work time is not permitted." No evidence, however, was presented to show that the rules were ever enforced in such a manner as to prevent solicitation or distribution during nonworking time. Without referring to the section on SOLICITATIONS, the Hearing Officer found the no-distribution rule to be invalid as the reference to working hours could be construed by employees to prohibit the distribution of literature during nonworking breaktime. In addi- tion, the Hearing Officer found that the no-solicita- I Sec. 102.69 of the Board 's Rules and Regulations provides that a party complaint case. Accordingly, we have not considered Petitioner 's "cross- opposing previously filed exceptions may file an "answering brier, to those exceptions" concerning the Hearing Officer's recommendation with respect exceptions. However, Sec. 102.69 does not provide for the filing of cross- to Petitioner's Objection 6. We have considered the portion of Petitioner's exceptions where the representation case is not consolidated with a brief which is in answer to the Employer's exceptions. 211 NLRB No. 112 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion rule, which prohibited solicitation during "work time," was also invalid on the grounds that employ- ees might reasonably construe the rule as prohibiting them from soliciting for a union during their paid, nonworking time. The Hearing Officer, finding both rules to be, at best, ambiguous, concluded that the risk of ambiguity must be held against the Employer, and thus she sustained the objection. We do not agree. The Board from time to time has been confronted with situations in which prohibitions against solicita- tion or distribution during "working hours" or during "working time" have been challenged. In our view, there is a clear distinction to be drawn between the terms "working hours" and "working time." The term "working hours" connotes the period of time from the beginning to the end of a workshift. Thus, the use of that term in a no-solicitation or no- distribution rule is reasonably calculated to mean that employees are prohibited from engaging in any form of union solicitation or distribution of union literature from the time they "clock in," or begin their workshift, until the time they "clock out," or end their workshift. By contrast, the term "working time" or "work time" connotes the period of time that is spent in the performance of actual job duties, which would not include time alloted for lunch and break periods. Thus, the use of that term in a no- solicitation or no-distribution rule would clearly convey the meaning to employees that they were free to engage in solicitation or distribution during lunch and break periods which occur during their "working hours." In light of the above distinction, we shall consider rules which prohibit solicitation or distribution during "working time" or "work time" to be valid on their face. On the other hand, those rules which prohibit solicitation or distribution during "working hours," unless their impact on lunch and breaktime is clarified, unduly restrict employees' rights under Section 7 of the Act to engage in union solicitation or distribution during their nonworking time.2 A rule prohibiting solicitation during "work time" or "working time" is, in our opinion, sufficiently clear to employees to justify requiring the party attempting to invalidate the rule to show, by extrinsic evidence, that, in the context of a particular case, the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during breaktime or other periods when employees are not actively at work. On the other hand, in our opinion, a rule prohibiting solicitation during "work- ing hours" isprima facie susceptible of the interpreta- tion that solicitation is prohibited during all business hours and, thus, invalid. We would therefore require the employer to show by extrinsic evidence that, in the context of a particular case, the "working hours" rule was communicated or applied in such a way as to convey an intent clearly to permit solicitation during breaktime or other periods when employees are not actively at work. In the instant case, the no-solicitation rule prohib- its soliciting during "work time," and is thus valid. It is arguable that the no-distribution rule, standing alone, is invalid because of its prohibition of distribution during "working hours." However, after considering that rule, together with the Employer's no-solicitation rule referring to "working time" and the separate section on SOLICITATIONS, which sets forth the Employer's rule against distribution during working time, we are unable to conclude that employees would consider the single reference to working hours to mean something other than working time. Our conclusion in this regard is consistent with the record evidence as to the actual understanding employees had of the rule. The evidence here makes it abundantly clear that the rules could not possibly have conveyed an intent to restrict solicitation or distribution at times when employees were not actively at work. At the time that they were first hired, employees were told either by the plant manager or by the plant superintendent that non- working breaktime was their own to do with as they wished, and there is employee testimony that the "working hours" rule was understood to mean "that you can solicit during your off times, such as your break time, your lunch time, before and after work. . . ." The record discloses that, during the current campaign, employees openly engaged in union solicitation without interference or discipline during their breaktimes, lunchtimes, and before and after work. There was thus no improper interference with employees' rights, and no basis for setting aside the instant election on this ground. Having found that both the no-solicitation and no-distribution rules are valid, we find no merit in this objection. Objection 8 alleges that the Employer conducted a captive audience speech, in violation of its own no- solicitation rule, without permitting Petitioner an equal opportunity to reply. Although the Employer conducted speeches 39 and 25 hours before the election, there is no evidence indicating that Petition- er requested an opportunity to reply. However, the 2 Accord: The Singer Company, Friden Division, 199 NLRB No. 162. The Singer rather than Avon to the extent that they are inconsistent. Hearing Officer relied on Avon Convalescent Center, Inc, 200 NLRB No. 99, Chairman Miller, who participated in the Avon decision, has reconsidered as being controlling with respect to rules incorporating the words "working this area of the law, and to the extent that the decision in Avon is time." Member Kennedy, who did not participate in Avon, would follow inconsistent with his view as expressed herein, he would overrule it. ESSEX INTERNATIONAL, INC. 751 Hearing Officer, relying on the Board's decision in Livingston Shirt Corporation,3 sustained the objection in view of her finding that the Employer promulgat- ed an overly broad no-solicitation rule. In view of our finding above that the Employer's no-solicitation rule is valid, we find no merit in this objection. Objection 2 alleges that the Employer made several promises of benefit to employees during speeches made to them on January 30 and 31, 1973.4 Specifically, the alleged promises were: (1) that the employees would receive whatever benefits a union could obtain without having a union; and (2) that any favoritism that existed in the plant would be corrected. As to (1), employees were informed during a speech made on January 31, 1 day before the election, that the Company would be "glad" to pay what it could afford, but that it would "never, ever, give a union more . . ." than the employees could obtain on their own. The Employer also told them that the Union, being realistic, would probably not make wage demands in excess of industry standards. The employees were also told that the Company had contracts with many unions, and that it would bargain in good faith if the Petitioner won the election. The Hearing Officer found that the Em- ployer's statement regarding what it would "give a union" went beyond "hard bargaining," and that it was designed to convince employees of the futility of union representation. Therefore, the Hearing Officer sustained this portion of the objection. We do not agree. We do not believe that statement, when viewed in the context of the Employer's entire speech, demon- strates to employees the futility of union representa- tion. This comment was made in the context of other statements to employees which were designed to show that the Employer, in order to protect its competitive position, would not yield to any union demands which might require wage increases in excess of the industry standard. There was no indication, however, that the Company would not bargain in good faith if the Union won the election. As to (2), employees were informed during the same January 31 speech that the Company would not stand for favoritism, and supervisors present in the room during the speech were warned that they would be discharged if they engaged in any such favoritism. These statements were apparently included in the speech because of comments made by two employees on January 30 that they were voting for the Union only because of favoritism on the part of their foreman. The Employer referred to these two employees in the January 31 speech, but attempted to show its longstanding opposition to favoritism by making reference to action taken against favoritism at another plant. In sustaining this portion of the objection the Hearing Officer found, but we do not agree, that the above remarks amounted to an explicit promise to correct employee grievances in regard to favoritism, a promise never before made. We believe instead that the statement made was designed simply to call attention to an existing policy adopted in advance of the election and without regard to it. In view of the above analysis, we find no merit in Objection 2. Accordingly, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER PENELLO, Concurring: I agree with the conclusion reached by Chairman Miller and Member Kennedy that there are no grounds for setting aside this election. However, in overruling Objection 1, I would not rely on all of the same factors relied on by my colleagues in the majority. Chairman Miller and Member Kennedy have stated that, in light of the clear distinction to be made between the terms "working time" and "working hours," they will henceforth consider all rules which prohibit solicitation or distribution during "working time" or "work time" to be valid on their face. In addition, they will now consider all rules which prohibit solicitation or distribution during "working hours" to be invalid "unless their impact on lunch and breaktime is clarified." While I agree with the above distinction between the terms "working time" and "working hours," I believe that it is necessary for me to set forth in a separate opinion what I believe an employer must do in order to satisfy his obligation to clarify rules which make reference to the term "working hours." My colleagues in the majority appear to be willing to consider, among other things, employee under- standing of a rule in determining whether the rule is violative of the Act. I, however, am unwilling to consider such subjective considerations, and will require that the clarification of a facially invalid rule 3 107 NLRB 400, 409. 4 The Hearing Officer found no merit in one such promise involving a prospective wage increase. No exceptions were filed with respect to this finding. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must come from the employer alone, either by a written or an oral explanation to all employees. Any other course would place an employee in the position of having to test the rule in order to determine its application. Such a course, in my opinion, would inhibit employees and restrict their rights under Section 7 of the Act to engage in union solicitation or distribution during their nonworking time. In the instant case, I would find, in agreement with my colleagues in the majority, that the no-solicitation rule referring to "working time" is valid. I would also find the no-distribution rule invalid, standing alone, because of its prohibition of distribution during "working hours." However, as noted by my col- leagues in the majority, the Employer clarified what it meant by "working hours" in a separate section on SOLICITATIONS, which sets forth the Employer's rule against distribution during "working time." In view of this written clarification and the valid no- solicitation rule referring to "working time," I would find, in agreement with Chairman Miller and Member Kennedy, that employees would not consid- er the single reference to "working hours" to mean something other than working time. Unlike my colleagues in the majority, however, I would not consider any of the evidence offered herein to show employees' subjective understanding of the rule. Furthermore, I am not convinced, as are my colleagues, that the record adequately supports the conclusion that the Employer communicated orally to employees at the time they were hired that the facially invalid no-solicitation rule did not apply during times when employees were not actively at work. MEMBERS FANNING AND JENKINS, dissenting: This case involves, among other issues, the ques- tion of whether the Employer maintained rules against solicitation and against distribution of literature which unlawfully circumscribed its employ- ees' utilization of these methods of communication of their views on union organization to each other while at their place of work. The basic question in any case such as this is whether the employer's rules limiting employees' right to distribute literature and otherwise communi- cate among themselves concerning the advantages or disadvantages of union organization reflect a proper "adjustment between the undisputed right of self- organization assured the employees under the Wag- Republic Aviation Corporation v. NL R.B, 324 U S. 793, 797-798. 6 See, e.g., Walton Manufacturing Company, 126 NLRB 697; Stoddard- Quirk Manufacturing Co., 138 NLRB 615. r Peyton Packing Company, 49 NLRB 828, 843. 8 N. L R.B v. Magnavox Company of Tennessee, 414 U.S. 1109 (1974), wherein the Court held that an employer and a union could not contractually agree to waive the right of employees to distribute literature in support of or in opposition to the union. ner Act and the equally undisputed right of employ- ers to maintain discipline in their establishments." 5 In determining whether particular no-distribution or no-solicitation rules reflect such a proper adjustment, the Board has long applied the presumption that a rule which proscribes employee solicitation or distribution activities only during the employee's working time has been promulgated for the legiti- mate purpose of maintaining order, discipline, and production.6 The basis of the presumption is the "working time is for work" principle.7 As a necessary corollary to this principle, the Board also presumes that those rules which go beyond regulation of employees' working time to be invalid , thus giving scope and substance to the employees ' statutory right of self-organization. As the Supreme Court has said, The place of work is a place uniquely appropriate for dissemination of views concerning the bar- gaining representative and the various options to the employees. So long as distribution is by employees to employees and so long as the in- plant solicitation is on non-working time, banning of that solicitation might seriously dilute § 7 rights. For Congress declared in § 1 of the Act it was the policy of the United States to protect the exercise by the workers of full freedom of association, self-organization and designation of representatives of their own choosing . 29 USC § 151.8 The presumptions of validity and invalidity carry with them important consequences respecting the enforcement of the rules against employees who ignore their strictures. Thus, discharge of an employ- ee for soliciting union membership in violation of a presumptively valid rule will be presumed to be motivated not by the nature of the activity, but by the fact that the rule was violated. Of course, the existence of the rule cannot and does not serve as a defense to an 8(a)(3) violation if the General Counsel can prove that the real reason for the discharge was the nature of the activity rather than the violation of the rule itself.9 But the point is that the presumption of validity attaching to a particular rule carries with it a presumption of regularity as to its enforcement and changes the nature of the burden of proof carried by the General Counsel in such a case.10 Moreover, the presumption of validity does more than that. It operates in practical effect to eliminate 9 See, for example, Montgomery Ward & Co., Incorporated, 202 NLRB 978 10 In the absence of a valid rule restricting such activities , the discharge of an employee for engaging in union solicitation even during working hours establishes a prima facie case that the discharge was for the nature of the activity. See Daylin Inc, Discount Division d/b/a Miller's Discount Dept. `Stores, 198 NLRB No. 40; J. L Hudson Company, 198 NLRB No. 19; Troy C. Friend d/b/a Friend Lumber Company, 121 NLRB 62. The Employer can ESSEX INTERNATIONAL, INC. the requirement that the employer come forth with objective evidence that the rule is in fact necessary to maintain discipline, production, and order. Because of this practical effect, and because such rules tend to operate to circumscribe the exercise of rights given to employees to discuss self-organization at their place of work, the Board has a special obligation to scrutinize carefully no-solicitation and no-distribu- tion rules to the end that they do not frustrate "the dominant purpose of the legislation [which] is the right of employees to organize for mutual aid without employer interference."11 To this end, the Board applies the well-settled rule that any ambiguity in the rule must work against the promulgator of the rule rather than against the employees to whom it applies.12 Applying these principles to this case, we are of the opinion that the Hearing Officer correctly concluded that both the no-solicitation rule and the no-distribu- tion rule were improperly drawn and unduly infr- inged upon employees' exercise of the right of self- organization. The rules published in an employee handbook were among 12 rules, violations of which were stated to be cause for disciplinary action. Rule 4 prohibits "solicitation for any cause during work time without permission." Rule 5 prohibits "distribution of litera- ture during working hours or in work areas without permission." There is no suggestion that these rules single out union solicitation and distribution of literature as restricted activity. Our colleages find that the no-solicitation rule (rule 4 is presumptively valid because the prohibition is limited to "work time," contrasting that term with "working hours" which would make the rule pre- sumptively invalid, in their view, as impinging upon an employee's nonworking time. In making this distinction between "working time" and "working hours" our colleagues find it necessary to overrule Avon Convalescent Center, Inc., 200 NLRB No. 99, wherein the Board held in effect that there is no magic in the phrases "working time" and "working hours" whereby one necessarily defines a clear intention not to restrict employee organizational activity during the employees' nonworking time and the other necessarily conveys an intention to infringe upon employee nonworking time. In short, the Board held that both phrases standing alone, convey ambiguous meanings to the employees, and that a of course rebut this case by establishing that the discharge was for failure to perform paid duties, disrupting the work of others , or the like. Where the employer has promulgated a valid rule, however , the rule is normally a defense to a discharge for activities in violation of the rule. 11 Republic Aviation Corporation v. N. L. R. B., supra at 798. 12 See, for example, N.LR.B. v. Harold Miller, et at., 341 F.2d 870, 874 (C.A. 2), enfg. 148 NLRB 1579. 13 Avon Convalescent Center, Inc. v. N. L. R. B., 490 F.2d 1384(C.A. 6), 85 753 rule against solicitation "during working time .. . for any cause in any area of the plant" was impermissibly broad. This finding, among others, was affirmed by the court of appeals, "as compelled by the evidence." 13 We perceive no reason for overruling that decision. The fact of the matter is that the phrase "working time" may be understood as including all time from the beginning to end of a work shift including paid breaktime, lunchtime, and cleanup time. An employ- er who does not intend such a broad interpretation of the phrase can easily incorporate in the statement of the rule a disclaimer that the restriction on organiza- tional activities is intended to apply to such time. His failure to do so necessarily imposes on employees the risk of violating the rule if they engage in such activities during such times that rule may not lawfully, but arguably does, reach. Imposing such risk upon employees is itself an interference with their exercise of Section 7 rights. We therefore continue to be of the view that use of the phrase "working time" standing alone does not clearly and unambiguously convey to employees the valid intent and purpose of restricting their organizational activities only during the time they are required to be working at their work stations. The foregoing applies, as our colleagues acknowl- edge, with even greater force to the phrase "working hours," as used in the Employer's no-distribution rule (rule 5). Plainly that rule is stated in terms that the majority concedes arguably prohibits distribution during nonworking time. Their concession in this regard demonstrates that the terms in which the rule is stated renders the meaning of the rule ambiguous. Since, as already noted, "the risk of ambiguity must be held against the promulgator of the rule rather than against the employee who must abide by it," 14 the rule is invalid. The ambiguity is not eliminated by another statement in another section of the handbook, under the heading "SOLICITATIONS" that "distribution of any literature in work areas or during work time is not permitted." This statement does not appear as a rule subjecting employees to discipline for its violation. An employee desirous of distributing literature in nonwork areas during paid breaktime could never be sure which statement of the rule would be used by his employer in judging whether he has violated rule 5. It seems to us that this different LRRM 2656. The Singer Company, Friden Division, 199 NLRB 1195, which our colleagues prefer to the Avon Convalescent Center decision, did not even involve the question of the validity of the rule, as the General Counsel proceeded only upon the theory of discriminatory enforcement of a valid rule. 14 Farah Manufacturing Company, 187 NLRB 601; N.L.R.B. v. Harold Miller, d/b/a Miller-Charles and Company, supra. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement of the rule heightens the ambiguity inherent in the language of the rule rather than eliminating it. Indeed the statement does add another note of ambiguity stemming from the addition of the word "any" in this statement entitled solicitation, for employees must under this statement wonder wheth- er the prohibition of literature distribution includes the distribution of union authorization cards. Our colleagues seem to be saying that the second statement, together with the use of the term "work time" in the rule against solicitation (rule 4) and the use of the same term in the general statement under SOLICITATION, demonstrates that the use of the terms "working hours" in rule 5 was intended to mean the same thing. One could say with as much logic, and considerably more regard for protecting employees' exercise of Section 7 rights, that the Employer's use of the two terms to mean the same thing renders both rules presumptively invalid, as the Hearing Officer in effect finds. We would affirm her finding. We would also affirm the Hearing Officer's finding that Objection 2 has merit for the reasons stated by her in her Report on Objections.