John H. Swisher & Son, Inc.

JOHN H. SWISHER & SON, INC. 777 John H. Swisher & Son, Inc. and Local 589, National Council Distributive Workers of America. Case 12-CA-6068 June 20, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Respondent violated Sec. 8(a)(l) of the Act by enforcing these rules because there is no evidence to establish that the rules were , in fact, enforced. Chairman Miller also disagrees with the conclusion that Respondent violated Sec. 8(aXl) of the Act by a supervisor's statement to employee Hyser to the effect that the Company meant what it said in a notice on the bulletin board. The notice informed employees that the Respondent would require employees to adhere to their obligations under the current collective-bargaining agreement. Since the supervisor was merely affirming the message conveyed in an admittedly lawful notice, Chairman Miller finds no basis for the inference that the supervisor's statement could be construed as a threat to discharge the employee if she engaged in protected union activity. On December 18, 1973, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 conclusions2 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 Respondent, John H. Swisher & Son, Inc., Jacksonville, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 Chairman Miller, for the reasons he stated in Essex International, Inc., 211 NLRB No. 112, agrees that Respondent's rules relating to union solicitation and distribution of union literature were overly broad and violated Sec . 8(a)(1) of the Act. In his view, thepresumption of an invalidity that arises from these rules has not been rebutted by the Respondent because there is no evidence in this case to establish that employees knew that union activity was not proscribed during breaks and lunch periods. However, Chairman Miller does not agree with the conclusion that DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: This case was heard at Jacksonville, Florida, on October 16, 1973,1 pursuant to a charge filed on June 25 by Local 589, National Council Distributive Workers of America (herein referred to as the Union), and a complaint issued on September 14. The complaint alleged that John H. Swisher & Son, Inc. (herein referred to as the Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein referred to as the Act), by maintaining unlawful no- solicitation and no-distribution rules, threatening employ- ees if they engaged in union activity, and interrogating an employee concerning her union activities. Respondent, in its answer, denied the commission of any unfair labor practices. The parties at the hearing were afforded full opportunity to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally on the record and to submit briefs. Upon the entire record, including my observation of the witnesses, and after due consideration of the oral argument made by counsel for the General Counsel and of the brief filed by the Respondent, I make the following: FINDINGS OF FACT I. JURDISDICTION I find, as the complaint alleges and the answer admits, that the Respondent, a Delaware corporation, is engaged in the business of producing tobacco products at its place of business located in Jacksonville, Florida; that during the 12-month period preceding the issuance of the complaint, Respondent received goods, materials, and supplies valued in excess of $50,000 directly from points located outside the State of Florida; that during the same period, it 1 Unless otherwise indicated, all dates hereinafter refer to 1973. 211 NLRB No. 114 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipped from its Jacksonville, Florida, plant, products valued in excess of $50,000, directly to points outside the State of Florida. Based on the foregoing, I find that Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges , the answer admits, and I find that Local 589, National Council Distributive Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction For more than 30 years Respondent has had a collective- bargaining relationship with Locals 86 and 119, Cigar Makers International Union of America, covering the production employees and certain designated maintenance employees, about 1,000 in number. Lodge 1003, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO has represented the remaining maintenance employees. On June 22, 1973, the Charging Party herein filed a representation petition (Case 12-RC-4402). A hearing was held and the case was transferred to the Board for decision . No Board decision has yet issued. B. The No-Solicitation and No-Distribution Rules Since 1956 the Respondent has written rules which have been posted on the bulletin boards and disseminated to its employees. The rules, 27 in number, included the following prohibitions: 6. Participation in organizational activities of any kind on Company time. 7. Passing of petition on Company time or proper- ty (only exception : permission specifically granted by Management.) 25. Solicitation on Company premises. According to the undisputed and credited testimony of Maurice Tipple, Respondent's director of employee rela- tions the Respondent revised its rules in early August 1973. The revision consisted only of adding another rule, Rule 28, which reads as follows: 28. The only exception to Rules #6, 7, and 25 would involve union activities ; in these cases, those action to which referred would be prohibited only during work hours in work areas. The rules, as revised, were posted on all the bulletin boards throughout the plant in early August 1973 and have been passed out to new employees. 2 N.L.R B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1956); Republic Aviation Corp v. N L.R B., 324 U.S. 793. 3 G.C Murphy Co, 171 NLRB 370, affd. 422 F. 2d 685 (C.A.D.C., 1%9); Marlene Industries Corp., 166 NLRB 703, enfd in relevant part 406 F 2d 886 (A.C. 6,1%9) Conclusions The General Counsel's complaint alleged that rules 6, 7, and 25, described supra, were unlawful rules. At the hearing, the General Counsel contended that rule 28 did not sanitize the invalidity of the no-solicitation and no- distribution rules. Respondent, in his brief, does not appear to contest the presumptive invalidity of rule 25 , but argues that rule 28, promulgated in August 1973, cured the defect . Respondent also contends that rule 6, prohibiting "organizational activities of any kind on Company time," is presumptively valid. With respect to rule 7, prohibiting "passing of petition on Company time or property," except where permission is specifically granted by Respondent, he argues that the rule is not, nor could it reasonably be interpreted to be, directed at union organizational solicita- tions or distribution. It is well established that the Act protects the right of employees during their nonworking time both to solicit union membership while on company premises and to distribute literature in nonworking areas on the company property unless the employer can demonstrate that unusual circumstances necessitate some restriction of that right in order to maintain production or discipline.2 No unusual circumstances were claimed by the Respondent herein. The propriety of rules governing employee distribution of literature and union solicitation has been the subject of considerable litigation over the years. The Board and the courts have been called upon all too frequently to determine the presumptive validity or invalidity of man- agement rules on this subject. It may be through ignorance, or perhaps by design, that these rules are often fraught with ambiguity and are subject to various interpretations. Legal experts, including Board members and the courts, some- times reach different conclusions on the validity of these rules. It would appear that with the passage of time and all the legal pronouncements in this area, simple language could be employed so that it could be readily understood by the employees to whom the rules are directed . For it is the promulgator of the rules who must assume the risk of ambiguity, rather than the employees who are supposed to abide by them.3 So once again the Board is called upon to determine the validity of the rules. We now turn to the rules promulgated in the present case. It needs no discussion to conclude that rule 25 is invalid on its face. It prohibits solicitations on company premises without any reservations or exceptions as to the employees' nonworking time. Rule 6 is all encompassing, covering almost every form of union activity, particularly solicitation and distribution of literature "on company time." Although it could be argued that prohibition of solicitation or distribution of literature on "company time" is presumptively valid,4 in the present case such presump- tion would be misplaced. Insofar as solicitation is con- cerned, rule 6 cannot be read in isolation but must be read together with rule 25, which prohibits solicitation on the 4 Logan Mfg. Co., 162 NLRB 1586. In WIPO, Inc., 199 NLRB 649, a majority of the Board announced it had not passed upon the validity of the no-solicitation rule containing similar language in finding a Section 8(a)(1) violation in Universal Cigar Corporation, 173 NLRB 865. JOHN H. SWISHER & SON, INC. company premises without any reservations. Under these circumstances, I find and conclude that rule 6, read together with rule 25, creates a sufficient ambiguity so that they could easily be interpreted by employees to prohibit union solicitation during the employees' free time. Rule 7 prohibits circulation of petitions on company time or property except where permission is specifically granted by management. I find and conclude that rule 7 is presump- tively invalid on its face. As the Board stated in WIPO, Inc., 5 "on company time on company property" might reasonably be interpreted by an employee as prohibiting union solicitation during nonworking time. Moreover, here too rule 7 must be read together with rule 25. I find no merit to Respondent's contention that because of the qualified exception to the rule-the necessity for company approval, the rule is valid in absence of any evidence that any employee was refused permission. An employer may not condition the exercise of Section 7 rights upon its own authorization.6 In August 1973, after the unfair labor practice charge was filed in the instant matter but before a complaint had issued, the Respondent apparently attempted to clarify any questioned validity of its rules described above by promulgating rule 28. This latest rule prohibited solicita- tions and distributions only "during work hours in work areas." I find and conclude that this rule is likewise presumptively invalid because of its vagueness and ambiguity. It does not with sufficient clarity advise the employees when they may engaged in union solicitation or distribution of literature. Such rule may be interpreted to prohibit union solicitation or distribution of literature during working hours, even during nonworking time, periods when the employees engaged in such activity are not expected to actually be working, e.g., break time, lunch periods, and the like. Rules prohibiting union activities such as solicitations and distribution of literature during "work hours" have been declared by the Board, with court approval, as presumptively invalid.? C. Other Acts of Interference, Restraint, and Coercion Employee Montana Rose Hyser, a machine operator employed by the Respondent for the past 16 years, testified she was active on behalf of the Union. According to Hyser's undisputed and credited testimony, on June 26, James Green, division foreman and her immediate supervi- sor, came up to her machine and asked her if she had read the notice on the bulletin board. When she acknowledged having read it, he replied he hoped so "because the company meant every word they said." A few minutes later, Green returned and she asked him if that was a threat. According to Hyser, Green "said no, that he just didn't want to see me get in any trouble or be fired." Green then asked Hyser not to tell anybody about their conversation . Green did not attempt to dispute or S WIPO, Inc., supra. 6 Greentree Electronics Corp., 176 NLRB 919; Standard Pressed Steel Co., 176 NLRB 175; American Coach Co., 158 NLRB 158. 7 Campbell Soup Company, 159 NLRB 74, enfd. in relevant part, 380 F.2d 372 (C.A. 5, 1967); Saco-Lowell Shops, 169 NLRB 1090, enfd.405 F.2d 175 (C.A. 4, 1968); Farah Manufacturing Company, 187 NLRB 601, 602,enfd. 779 contradict her testimony. His testimony consisted of having no recollection of talking to Mrs. Hyser about the notice. The notice referred to in their conversation was received in evidence as General Counsel Exhibit 3. It had been posted on Respondent's bulletin boards the morning of their conversation. The notice advised the employees of the petition filed by the Union and the Company's position that its contracts with the incumbent unions would be upheld as bars to the further processing of the petition. Referring to these contracts, the notice also contained the following language: Since these are valid and binding contracts, we wish to remind everyone that any action taken by any of our employees, which is in conflict with these Labor Agreements, exposes those employees to immediate termination without recourse7either legal or contractu- al. None of the contracts were offered in evidence or otherwise referred to at the hearing. Director of Employee Relations Tipple testified he caused the notice to be posted because, "At that time there was considerable talk around the plant about some outside union-unaffiliated union -trying to raid the plant. We had rumors of a possible wildcat." The notice itself has not been attacked by the General Counsel. It may be that Respondent was prompt- ed to post the notice by the possibility of a wildcat strike. However Green never alluded to such strike in his conversation with Hyser nor did he explain what he meant when he said she could get in trouble or be fired. In my opinion, his statement could reasonably be construed as a veiled threat to discharge her if she engaged in any activities on behalf of the Union. Accordingly, I find that on June 26, Green threatened Hyser with discharge or other disciplinary action if she engaged in activity on behalf of the Union and that such threat constituted a violation of Section 8(a)(1) of the Act. Employee Carol Miller, employed by the Respondent for the past 7 years, testified that sometime in the latter part of May, Marvin Odom, head of the production department and an admitted supervisor, came up to her as she was filling hoppers. According to Miller, Odom asked her if she knew anything about the new union. She denied any knowledge and then he asked her if she had been circulating or had any knowledge of the circulation of cards. She responded in the negative. Odom then said, "Well, you know you can be taken off of yourjob and put back on your machine." 8 Odom also told her he had been receiving complaints she had not been filling the hoppers promptly. Odom admitted having a conversation with her regard- ing her work as a hopper filler. He testified he had received complaints from girls on the roller machines that Miller was not keeping the hoppers filled. He then told Miller of 450 F.2d 942 (C.A. 5, 1971); G. C. Murphy Company, supra at 370. E At the time of this conversation, Miller was a hopper filler-filling the hoppers of the roller machines for the production employees. Previously she operated a roller machine making the cigars . She had been transferred to hopper filler at her request. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these complaints and that he had observed her away from her working area. He told her that if she did not improve he would have to put her back on the roller machine. He was not asked whether he interrogated her concerning the Union or the circulation of the cards. I find Miller's account more credibly reflects what actually was said and that Odom did interrogate her as to her knowledge of the Union and the circulation of cards. I further find that he subtly threatened her with return to her former job if she engaged in activities on behalf of the Union. Accordingly, I conclude such interrogation and threat constituted violations of Section 8(a)(l) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described 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 of commerce. CONCLUSIONS OF LAW 1. Respondent 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. By promulgating, maintaining, and enforcing rules prohibiting employees from soliciting in connection with union activities during their nonworking time or from distributing literature on behalf of any labor organization during nonworking time in nonworking areas, by threaten- ing discharge or other reprisals against employees for engaging in union activities, by interrogating employees concerning their or other employees' union activities, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(axl) of the Act, I shall recommend that it cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDERS John H. Swisher & Son, Inc., Respondent herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees con- cerning their or the union activities of other employees or threatening its employees with discharge or other reprisals for engaging in such activities. (b) Promulgating, maintaining, or enforcing any direc- tive, regulation, or rule which in terms or effect prohibits or prevents any of its employees, during times when they are not required to be working, from orally soliciting any other employees and/or obtaining the signatures of any other employees on union authorization cards or petitions on behalf of any labor organization during any times when such other employees are not required to be working. (c) Promulgating, maintaining, or enforcing any direc- tive, regulation or rule which in terms or effect prohibits or prevents any of its employees, during times when they are not required to be working, from distributing literature on behalf of any labor organization in nonworking areas of its premises. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary and appropriate to effectuate the policies of the Act: (a) Forthwith rescind its rules to the extent that it prohibits its employees from engaging in the activities described in 1(b) and (c) immediately above. (b) Post at its plant in Jacksonville, Florida, copies of the attached notice marked "Appendix." 10 Copies of the notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 9 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. 10 In the event the Board's Order is enforced by a Judgment of the 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 After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the JOHN H. SWISHER & SON, INC. National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT establish, maintain, or apply any rule which prohibits or prevents any employee from orally soliciting any other employee on our premises and/or obtaining the signatures of employees on union authorization cards or on petitions on behalf of any labor organization, during time neither is working nor required to be working. WE WILL NOT establish, maintain, or apply any rule which prohibits or prevents our employees from distributing literature on behalf of any labor organiza- tion in nonworking areas of our premises during the time they are not working nor required to be working. 781 WE WILL NOT coercively question employees con- cerning their or other employees' union support or activities. WE WILL NOT threaten employees with discharge or other reprisals because of their union support or activities. Dated By Joni H. SwlsIwI & SON, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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, Room 706, Federal Office Building, 500 Zack Street, Post Office Box 3322, Tampa, Florida 33602, Telephone 813-228-2641.