Ling Products Co., Inc.

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ling Products Company, Inc. and International Print- ing and Graphic Communications Union, AFL- CIO. Case 30-CA-2428 June 28, 1974 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On February 25, 1974, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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, as modified herein. The General Counsel has excepted, inter alia, to the failure of the Administrative Law Judge to find that Respondent threatened employees with discipline for engaging in union activities in violation of Section 8(a)(1). Specifically, this exception concerns alleged threats made by Respondent's supervisor, Weber, to employee Muthig. We find merit in this exception. In late April 1973, after Respondent had learned of the Union's organizing campaign, Plant Superinten- dent Weber called employee Muthig aside and told him he couldn't talk union during working hours, and that it was "a Federal offense." Again in May, Weber and Muthig were having a conversation about the Union, and Weber indicated to Muthig that the way the latter voted was up to him, but also stated that Muthig had to keep his mouth shut about the Union during working hours. He also told Muthig that orga- nizing a union within the plant was a Federal offense. A third conversation between Weber and Muthig occurred on July 31. Muthig had stopped at the work station of employee Waldock, and the latter was tell- ing Muthig about a movie she had seen. Weber ap- proached and asked Muthig what he was doing. When Muthig replied that he was waiting for an instrument to dry, Weber insisted that he knew Muthig had been talking to the girls about the Union, accused Muthig of going to the other plant to talk to another employee about the Union, and told Muthig that if he continued these activities the Company would have to file unfair labor practice charges against him. Weber also told Muthig that, if he didn't do what he was supposed to do during working hours, he would have to be fired. Citing Muthig's admission that he had, on occa- sion, spoken to employees who were working, and his belief that Weber may have been referring to these occasions when he told Muthig the first two times not to talk union during working hours, the Administra- tive Law Judge found that Weber merely admonished Muthig that "work time is for work," and threatened him with discipline in response to his violations of this accepted rule. In so doing, he rejected the arguments of the General Counsel that such threats were in fur- therance of Respondent's no-solicitation rule (found to be unlawful by the Administrative Law Judge), and that Respondent condoned other conversations dur- ing working time. In his rejection of the latter argu- ment, the Administrative Law Judge cited a lack of sufficient evidence that Respondent was aware of em- ployees' soliciting for different things or carrying on conversations while working. We cannot agree. Although it may be true that Respondent was not aware of other solicitation during working time, we do not believe it reasonable to assume that Respondent was unaware that employees other than Muthig car- ried on conversations during their working time, or that it did not condone such activities. Weber supervises approximately 35 employees in the plant and, in doing so, moves all around the plant. In light of testimony by two employees that they con- verse during worktime "all the time" and "60 percent" of the time, respectively, it is hard to envision Weber's being unaware of this activity. Yet, neither of these employees had been admonished for talking. In fact, it was employee Waldock who was telling Muthig of a movie she had seen when, on July 31, Weber ad- monished and threatened Muthig for talking union saying nothing to Waldock. This makes it clear that talking was not an offense which disturbed Weber, but talking about union matters was. Further, although Muthig admittedly talked to em- ployees about the Union on worktime prior to Weber's first two admonitions of Muthig, Weber did not state that this was known by him or that it was his reason for warning Muthig. Based on the foregoing, we find that Weber tried to impress upon Muthig that he would not tolerate union talk in the plant, and that Muthig would be disci- plined for such activity. Such threats were an attempt to restrain, coerce, and interfere with Muthig's Sec- tion 7 rights, in violation of Section 8(a)(1) of the Act. We further find that such activity was an enforce- ment of Respondent's illegal no-solicitation rule, in violation of Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor 212 NLRB No. 38 LING PRODUCTS CO. Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified, and hereby orders that Ling Products Company, Inc., Neenah, Wisconsin, ' its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following for paragraph 1(a): "(a) Publishing, distributing, or enforcing any rule which prohibits employees from soliciting or distrib- uting literature on behalf of a labor organization on Respondent's premises during nonworking time." 2. Insert the following as paragraph 1(b) and relet- ter 1(b) as 1(c): "(b) Threatening employees with discipline or dis- charge for engaging in conversations concerning the Union." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER KENNEDY, dissenting in part: I do not agree with my colleagues' reversal of the Administrative Law Judge's Decision. He found that Respondent did not violate Section 8(a)(1) by warn- ing employee Muthig not to engage in union activities during his working time. As found by the Administra- tive Law Judge, employee Muthig admitted that he was never threatened with discipline for talking about the Union or engaging in union activities on company premises during his nonworking time. The evidence does not establish that Respondent knowingly permitted employees to discuss or to en- gage in activities unrelated to their work during their working time at the plant. Nevertheless the majority concludes "it reasonable to assume" that Respondent must have been aware of such conversations and con- doned them. Like the Administrative Law Judge who heard this case, I am unwilling to indulge in such assumptions and instead would rely on the record evidence. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT publish, distribute, or enforce any employment rule which prohibits our employees from soliciting or distributing literature on behalf of a labor organization on the premises of Ling Products Company, Inc., during their nonwork- ing time, and we will delete from our present 153 employment rules that portion of rule 17 which prohibits such activities. WE WILL NOT threaten employees with disci- pline or discharge for engaging in conversations concerning the Union. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. LING PRODUCTS COMPANY, INC. (Employer) Dated By (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 compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 532 03, Telephone 414-224-3861. DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: This case' came on to be heard before me at Neenah, Wisconsin, on October 15 and 16, 1973, upon a complaint 2 issued by the General Counsel of the National Labor Relations Board and an answer filed by Ling Products Company, Inc., here- inafter called the Respondent. The issues raised by the pleadings in this proceeding relate to whether or not the Respondent has violated Section 8(a)(1) of the National Labor Relations Act, as amended, by acts and conduct hereinafter specified. Briefs have been received from the General Counsel and the Respondent, and have been duly considered. Upon the entire record in this proceeding, and from my observation of the testimony and demeanor of the witness- es, I hereby make the following: 1 During the course of the hearing , the formal documents pertaining to this proceeding were amended to reflect the current name of the Charging Union as International Punting and Graphic Communications Union, AFL-CIO. 2 The complaint in this case was issued on September 25, 1973, upon a charge filed on August 3, 1973, and served on the Respondent on the same date 154 DECISIONS OF NATIONAL FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find that the Respondent is a Wisconsin corporation, is engaged in the manufacture, sale, and distribution of plastic products -from its Neenah, Wisconsin, facility, and during the past calendar year purchased goods and materials directly from sources situated outside the State of Wisconsin in an amount valued in excess of $50,000. I find, accordingly, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint also alleges , the answer admits, and I find that International Printing and Graphic Communications Union, AFL-CIO, hereinafter called the Union , is a labor organization within the meaning of Section 2 (5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED In the original complaint in this proceeding, the General Counsel alleged that the Respondent violated Section 8(a)(1) of the Act by (l) granting a wage increase to discour- age its employees' support of the Union; (2) threatening an employee with disciplinary action because of his union sym- pathies and activities; and (3) creating the impression that its employees' union activities were under surveillance. At the outset of the hearing, the General Counsel amended the complaint to additionally allege that the Respondent also violated Section 8(a)(1) by'promulgating and maintaining an unlawful no-solicitation and no-distribution rule. By its answer, as amended to conform to the General Counsel's additional allegation, the Respondent denies that it has en- gaged in any acts or conduct in violation of the National Labor Relations Act. A. Background The Respondent maintains two plants at Neenah, desig- nated in the record as plants I and 3. In February 1973,3 the Respondent undertook negotiations for the sale of the Com- pany, and on March l became a wholly owned subsidiary of The George Banta Company. At all times material to this case, Charles J. Lingelback has been the Respondent's pres- ident, and Robert M. Weber has been its plant superinten- dent in plant 1. Both Lingelback and Weber are admitted to be supervisors and agents of the Respondent within the meaning of Section 2(13) of the Act. The Respondent has a varied product line and some items are produced for its own behalf, while other items are pro- duced under contracts from other concerns on a cost-plus basis. In April, when events relevant to this case materi- alized, the Respondent employed 45 to 48 hourly paid em- ployees. Historically the Respondent has utilized its J All dates recited hereinafter are in 1973, unless specified to the contrary LABOR RELATIONS BOARD employees ii a broad variety of functions, and transfers from one classification to another have been common prac- tice. The testimony of Lingelback, supported by Respondent's employment records, reflects that permanent and temporary changes in job classification, may, or may not have, resulted in wage increases. Late in March the Union undertook an organizing cam- paign among the Respondent's employees. The first union meeting was held on March 24, and was followed by a series of subsequent meetings which culminated in a Board elec- tion on July 26. The election resulted in a tie vote and, as of the dates of the hearing in this proceeding, had not been scheduled for a rerun. B. The Wage Increase The General Counsel has alleged that from April 14 to approximately July 26 the Respondent granted wage in- creases for the purpose of inducing its employees to discon- tinue their support of the Union. In support of this allegation, and upon evidence contained in the. Respondent's employment records, the General Counsel ar- gues that the wages granted in April were unprecedented in terms of both the percentage of employees affected and the amounts of the raises granted. The General Counsel con- cedes that, to accord merit to the allegation, the record must contain requisite proof that (1) the Respondent was aware of its employees' union activities, and (2), assuming proof of the above, the wage increases were motivated, in whole or in part, by the Respondent's intent to frustrate and un- dermine the collective-bargaining aspirations of its employ- ees. For the reasons related below, I find that the General Counsel has failed to sustain the burden of proof on both counts. Employee Bradley Muthig was the only witness presented by the General Counsel with testimony relevant to the issue of when, and by what means, the Respondent became aware that its employees were engaged in union activities. Muthig testified that talk about a union started about March 23 or 24, and that a union meeting was held on the latter date at the Eagle's Club Tavern. As to Muthig's other testimony, it is clear that his union activities, such as talking to other employees, passing out leaflets, and serving on the Union's organizing committee, did not transpire or come to the Respondent's attention until late in April. I find, therefore, that the record contains no direct evidence to support the General Counsel's contention that the Respondent had knowledge of any union activities among its employees when it finalized and implemented a wage increase on or about April 2. The General Counsel has other strings to her bow, howev- er, and contends that the record contains evidence to sup- port a presumption sufficient to warrant a finding of company knowledge. The General Counsel argues, alterna- tively, that the Respondent received a letter from the Union on March 31 which constituted notice of an active or im- pending organizing campaign, and that, in any event, the restricted scope of the Respondent's employment comple- ment is sufficient to support a finding of knowledge as of the date of the first union meeting on March 24. As to the so-called letter from the Union of March 31, the LING PRODUCTS CO. 155 Respondent received a copy of a printed form entitled "It's the Law," which purports to advise employees of the guar- antees provided by Federal law, and the protection afforded, those who wish to form, join, or assist labor organizations. The printed form was signed by a representative of the International Union, and by representatives of certain local unions affiliated with the Printing Pressmen, but there is nothing in the record to indicate that the signatories were employed by, or otherwise known to, the Respondent. Nei- ther is there anything in the contents of the printed form to apprise the Respondent that its employees had engaged, or intended to engage, in any union activities which would entitle them to the protection and guarantees specified. Not- withstanding the evidence that Lingelback brought the doc- ument to the attention of his managerial and supervisory personnel shortly after its receipt, I find that it is insufficient to support a finding of company knowledge. I find an equal lack of merit in the General Counsel's contention that knowledge can be inferred from the limited size of the employment complement, and the evidence that about one-half of the Respondent's employees attended a union meeting on March 24. The "small plant" doctrine is simply not applicable where the evidence is limited to some union activities coupled with evidence of a limited comple- ment of employees. The application of the doctrine requires additional proof that the union activities were undertaken at such times and places, and with sufficient openness and notoriety, that in the normal course of events the employer would have noticed them.4 Here, aside from a union meet- ing held off company premises on March 24, there is no evidence of union activity on the Respondent's time or property until late April-several weeks after the com- plained of wage increases had been granted. Accordingly, I find that the General Counsel has failed to prove beyond a reasonable doubt that the Respondent had knowledge of any union activities among its employees when it granted the wage increases on and after April 2. Even if, contrary to the foregoing, there was sufficient proof of knowledge, the whole of the record will not support a finding that the wage increases granted by the Respondent on and after April 2 were given for purposes proscribed by the Act.5 Lingelback's testimony, supported in pertinent part by the Respondent's employment records, reflects that prior to the spring of 1972, the Company had no uniform policy with respect to periodic review of its employees for wage increas- es. Employees were sometimes granted wage increases in connection with a transfer from one classification to anoth- er, and wage increases were sometimes granted without re- gard to a change in the employee's job functions. The Respondent's practice with regard to periodic employee re- view was similarly lacking in uniformity, and the Company had no standard policy for wage reviews during an employee's probationary period, or at subsequent intervals in the employment relationship. 4Amyx Industries, Inc v. N.LR B, 457 F.2d 904,907 (C.A. 8, 1972), citing Ralston Purina Co., 166 NLRB 566, 570, and Hadley Mfg. Co, 108 NLRB 1641, 1650. s N L R B. v. Exchange Parts Co., 375 U.S. 405 (1964); Tonkawa Refining Co., 175 NLRB 619, enfd. 434 F.2d 1041 (C A. 10, 1970) In mid-December 1972, coincidental with negotiations for acquisition of Ling Products by The George Banta Coin- - pany, the Respondent was instructed to institute an ac- counting system and a uniform wage policy to conform with the system utilized by another Banta subsidiary, Daniels Packaging Company. Discussions on the wage policy con- tinued in February, after Banta made the final decision to purchase Ling Products. The merger was effective March 1, 1973, the new accounting system was made effective March 5, and the new policy for periodic wage reviews became effective the following week. Under the new policy, the Respondent reviews all em- ployees at the conclusion of 30 and 60 days of employment, at the end of each 6 months, and additional merit increases are permitted without regard to time intervals. Continuing its prior policy, employee reviews are conducted by the plant superintendents, and President Lingelback reserves authority to finally determine which employees are entitled to wage increases. The new policy was implemented during the third week in March and, on March 26, Plant Superin- tendent Weber gave Lingelback the results of his reviews and recommendations, for individual wage increases. Lin- gelback approved the increases, and they became effective in the paychecks received by the employees on April 2.6 As related above, the General Counsel contends that the wage increases granted by the Respondent in April were unprecedented in terms of both numbers of employees af- fected and the amounts granted. The record reflects that the Respondent granted 54 individual wage increases after March 31, 1973, but 31, or 57 percent of the increases were accompanied by changes in job classifications. The remain- ing 23 increases granted over a period of approximately 6 months can hardly be described as excessive or unprece- dented, particularly when reviewed in the light of an excep- tionally high turnover of employees. Even if, however, the total wage increases granted after March 31 exceeded in number and amount the Respondent's historical practice, the statistics alone are no proof that the wage increases were motivated by any purpose other than valid economic rea- sons. I find and conclude, accordingly, that the wage increases authorized by the Respondent after March 31 were granted for valid economic reasons, unattended by any motive or purpose to induce its employees to reject the Union or their rights to collective-bargaining representation. I shall recom- mend that this allegation of the complaint be dismissed.7 C. The Threats of Disciplinary Action Bradley Muthig, employed by the Respondent as a die- 6 Employee Marsha Waldoch testified that she received a 10-cent wage increase effective April 1, and that about 2 weeks before, at a time she described as mid-April, she was given a wage review by Plant Superintendent Robert Weber, who informed her of the Respondent's new policy on periodic wage reviews According to Waldoch's further testimony, Weber informed her that the raise was not intended to influence her in connection with the Union's campaign. The Respondent's records reflect that Waldoch's raise became effective April 2, but from Waldoch's confusion over the date when the review took place, I find that her testimony simply confirms the Respondent's contention concerning the new review policy and the dates of its implementation 7 N.L.R B v. Exchange Parts Co, supra, The Singer Company, Friden Divi- sion, 199 NLRB 1195; Tonkawa Refining Co, 175 NLRB 619. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maker, testified that in late April Plant Superintendent We- ber called him aside and told him that he couldn't talk union during working hours, because , "It's a Federal offense." Muthig agreed with Weber's admonition, and that appears to have ended the conversation. Muthig testified that on a second occasion in May he had another conversation with Weber which took place in the lunchroom. According to Muthig, there was a general con- versation about the Union, followed by Weber's warning that the way Muthig voted was up to him, but Muthig had to keep his mouth shut about the Union during working hours. Weber counseled Muthig that organizing a union within the plant was a Federal offense. On July 31, Muthig had a third conversation with Weber. As Muthig testified, he had just finished a die and while walking to the restroom stopped to talk to employee Marsha Waldoch. While a conversation concerning a movie was in progress, Weber came up and asked Muthig what he was doing. Muthig replied that he had just finished a die and was waiting for the instrument to dry. Weber inserted that he knew Muthig had been talking to the girls about the Union, accused Muthig of going to plant 3 to talk to another em- ployee about the Union, and cautioned that if Weber con- tinued these activities the Company would have to file unfair labor practice charges against him . According to Mu- thig, Weber also warned that, if Muthig continued to fail to perform his work during duty hours , he would have to be fired. With respect to the April conversation with Weber, Mu- thig testified on cross-examination that at an earlier time on the same day he had talked to another employee about the Union during her worktime, and that he interpreted Weber's warning to relate to the prior conversation. As to the May conversation in the lunchroom , Muthig similarly admitted that he had been engaged in occasional conversa- tions with other employees about the Union , and that Weber's comments and warning were in response to Muthig's conduct. As to the July 31 conversation, Muthig insisted on cross- examination that the subject of his conversation with Mar- sha Waldoch concerned a current movie, and not the Union. Muthig also insisted on cross-examination, contrary to Weber, that he was on a break period at the time of the conversation, but also admitted that Waldoch was at her work station and supposed to be working when he engaged her in the conversation. In further answers on cross -examination, Muthig admit- ted that the only warnings and threats of discipline he re- ceived from Weber or any other agent of the Respondent concerned his conduct in discussing the Union with other employees during working time . Muthig candidly admitted that he was never cautioned , warned, or threatened with discipline for talking about the Union, or engaging in other union activities on company premises during nonworking time. Muthig's testimony does not support the allegation of the complaint that he was threatened by management with dis- cipline because of his sympathies for and activities on be- half of the Union. All the record supports is the Respondent's admission that Muthig was warned not to use , , , company time for his organizing activities, and threatened Corporation v. N L R B, 324 U.S. 793, 802-803 (1945). with discipline if he persisted in his prior conduct. The admonition that "Work time is for work" 8 is too well estab- lished in the law to require further explication. The warning and threats of discipline meted out to Muthig were solely in response to his violations of the ordinary and accepted rules of the employment relationship-that nonwork related ac- tivities are restricted to nonwork time. The General Counsel contends, nevertheless, that the warnings and threats of discipline issued to Muthig were in furtherance of the Respondent's alleged unlawful no-solici- tation rule, and violative of Section 8(a)(1) of the Act be- cause the Respondent permits other nonwork related activities to be conducted during working hours. There is no evidence in this record to support a finding that the Respondent's alleged unlawful no-solicitation rule has ever been enforced in any of its alleged unlawful as- pects. As to its lawful aspects, that is the prohibition against engaging in nonwork related activities on worktime, I find insufficient evidence in this record to support the General Counsel's contention that the Respondent has permitted and condoned other violations of the rule unconnected to union activities. In support of the contention of condonation, the General Counsel adduced testimony from Marsha Waldoch and em- ployee Camille Sanders that they conversed about nonwork related matters on the job, and have never been warned or threatened with discipline for such conduct. The employees also testified to the activities of an Avon solicitor, and col- lections taken up for weddings and similar events, including a contribution made by President Lingelback and Superin- tendent Weber. As to the conversations on the job, the General Counsel elicited no testimony that the practice or pattern is known to, or condoned by supervisors, management officials, or any other agent of the Respondent. As concerns the Avon solicitations, the evidence reflects that the employee who solicits Avon business leaves order blanks in the lunchroom and the employees place their orders during break periods. After the orders are filled, the solicitor leaves the merchan- dise in the ladies restroom to be picked up by the purchaser. The evidence, accordingly, does not support the General Counsel's asserting of condonation of violations of the rule against solicitation on company time. The employees also testified that contributions for gifts for members of the employee complement are solicited in the plant, during both working and nonwork time, and em- ployee Sanders testified that both President Lingelback and Plant Superintendent Weber may have contributed on their own behalf. Like the on-the job conversations, however, there is no evidence that this practice is known to the Re- spondent, or its agents, and there is not even evidence that the contributions solicited from Lingelback and Weber were obtained on company time, or company premises. In summary I find and conclude that the General Coun- sel has not sustained the burden of proving that the Re- spondent unlawfully threatened employees with discipline because of their union sympathies and activities, and I shall recommend that the allegation be dismissed. 8 Peyton Packing Company Inc 49 NLRB 828 843; Republic Aviation LING PRODUCTS CO. 157 D. The Impression of Surveillance The General Counsel offered no independent evidence on the allegation that the Respondent violated Section 8(a)(1) by giving employees the impression that their union activities were under company surveillance, but contends that Weber's comments to employee Muthig, particularly those of July 31 to the effect that Muthig's union related conversations on company time were known, provides the necessary proof for this allegation. The General Counsel also asserts that the proof of the allegation is enhanced by the evidence that Muthig later repeated Weber's comments to employee Waldoch. I have found above that the warnings and threats of discipline meted out to Muthig related solely to his union activities during work time, and did not impinge in any manner on Muthig's rights, or the rights of any other em- ployee under Section 7 of the Act. In the light of that find- mg, I fail to perceive the slightest degree of merit, or commonsense in the General Counsel's contention that the Respondent unlawfully created an impression of surveil- lance by warning an employee that his union activities on company time were known and would not be tolerated. I will recommend dismissal of the allegation. on its face and I am equally obligated to recommend a remedy. The mere existence of an invalid no-solicitation or no-distribution rule, even though never enforced, is a viola- tion of Section 8(a)(1) of the Act.' On the facts, the rule set forth above has been in existence since 1970, and has been published and distributed in two editions of the Respondent's employment rules. According to Lingelback's testimony, the Respondent's employment rules are distrib- uted to employees at the time of hire, and each employee is required to read the rules and execute a signed statement to the effect that he understands the rules and intends to follow them. In these factual circumstances, the need for a remedial order is apparent. V. THE REMEDY Having found that the Respondent's no-solicitation and no-distribution rule is invalid on its face and violative of Section 8(a)(1) of the Act, I shall recommend that the Re- spondent cease publishing and distributing the rule, and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing finding of fact and conclusions, and upon the entire record in the case, I hereby make the follow- ing: E. The No-Solicitation, No-Distribution Rule At all times material to this case the Respondent has maintained the following rule in effect at its plants 1 and 3 at Neenah, Wisconsin: Solicitation Actions involving selling, soliciting, canvassing, or distributing on plant premises and of any kind are expressly prohibited. By its brief the Respondent concedes that the rule is poorly drafted, and I agree that its ban on solicitation and distribution on company premises at all times exceeds the bounds of what is lawfully permitted under Board and court precedent. I have also found above, however, that the Re- spondent has never applied or enforced the rule in any of its unlawful aspects, so that the rule remains illegal only as published and distributed, and not as construed or applied. Under these circumstances, and in further consideration of the fact that the allegation concerning the illegality of the rule was interjected into this proceeding at the very last moment, and after the hearing had been once postponed, I have some doubt that the policies and purpose of the Act are served by the finding of a violation and issuance of a remedial order. This proceeding began with a complaint of rather ambitious scope, but in all respects save the no-solici- tation, no-distribution rule the General Counsel has failed to sustain the burden of proof. The result is a finding of a purely technical violation, which, as the record reflects, could have been settled or adjusted at the outset of the hearing to the full satisfaction of the law and all the parties. The opportunity for settlement or adjustment has now been foreclosed, however, and upon the whole thrust of the law and the facts I am obligated to find that the rule is illegal CONCLUSION OF LAW 1. Ling Products Company, Inc., is, and has been at all times material to this proceeding, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The International Printing and Graphic Communica- tions Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section III, subsection E, above, the Respondent has engaged in an unfair labor prac- tice within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER10 The Respondent, Ling Products Company, Inc., Neenah, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Publishing or distributing to its employees any rule which prohibits employees from soliciting or distributing 9 Pueblo Supermarkets, Inc, 156 NLRB 654 10 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. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD literature on behalf of a labor organization on Respondent's premises during nonworking time. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative actions to effectuate the policies of the Act: (a) Delete from its existing employment rules that por- tion of its rule 17 which prohibits employees from soliciting or distributing literature on behalf of a labor organization on the Respondent's premises during their nonworking time. (b) Post at its plants 1 and 3 copies of the attached notice marked "Appendix." I I Copies of said notice, on forms pro- In the event that the Board's Order is enforced by a Judgment of a vided by the Regional Director for Region 30, after being duly signed by the Respondent, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 30, in writ- ing, within 20 days of the receipt of this Decision, what steps have been taken by the Respondent to comply herewith. IT IS HEREBY FURTHER ORDERED that all other allegations of the complaint in this proceeding be, and they hereby are, dismissed. 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."