Bellinger Shipyards, Inc.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bellinger Shipyards, Inc. and International Brother- hood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO. Case 12- CA-7053 December 29, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On June 30, 1976, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the 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 conclusions of the Administrative Law Judge only to the extent consistent herewith. The record reveals that up until February 5, 1976, the Respondent maintained in its employee hand- book the following rule: 18. Solicitation. Solicitation, subscription, sale of tickets, circulation of petitions, posting or distribution of hand bills or placards or any other material without proper authorization. The Administrative Law Judge found that the above- quoted rule was unlawful. This rule, however, was rescinded and replaced by a new rule on February 5, 1976, about a month before the complaint herein issued. The new rule, which was posted throughout the shipyard, read: No employee(s) shall solicit or promote subscrip- tions, pledges, memberships or other types of support for any drives, campaigns, causes or organizations on company property during the scheduled or assigned working times of either the employee(s) engaging in such activity or employ- ee(s) at whom such activity is directed. The distribution or circulation of leaflets, pamphlets, circulars or other printed matters likewise is not permitted during such scheduled or assigned working times or in work areas. 1201 NLRB 622 (1973). 2 In this regard, in the instant case , during November and December of 1975, the plant manager warned three employees , Cosper, Velez, and Boggess, that the Company's rules prohibited soliciting duung "working 227 NLRB No. 95 The General Counsel does not contend that the February 5, 1976, rule is unlawful. The Respondent contends that the usual remedial order is not warranted herein because the rule that the Administrative Law Judge found to be unlawful was rescinded and replaced before the complaint herein issued. We agree. Contrary to the Administrative Law Judge, we find the situation here to be similar to the one existing in Deringer Company.' There, the employer had a rule which prohibited soliciting during washup time. In that case, as in the instant one, the employer revoked the unlawful no-solicitation rule. Regarding that rule the Administrative Law Judge stated that there was no showing that the employees were adversely affected by the unlawful rule during its existence and there was no showing that the employer had engaged in other activity other than legal opposition to the union.2 Under those circumstances, the Administra- tive Law Judge stated: ... Respondent voluntarily put itself in compli- ance with the Act. It is considered that such voluntarily [sic] action should be encouraged. We adopted that rationale in that case and believe that it should apply in this one. Our dissenting colleague would affirm the Adminis- trative Law Judge and issue a remedial order in this case. Board precedent, at first blush, would seem to warrant adoption of the Administrative Law Judge's finding for it is true that at a point in time which preceded the issuance of the complaint the Respon- dent did in fact maintain an unlawful no-solicitation rule as written. In the circumstances of this case, however, the conduct involved was so minimal and has been so substantially remedied by the Respon- dent's subsequent conduct that the entire situation is one of little significance and there is no real need for a Board remedy. Nor do we agree with our colleague's statement that our disposition of this case seems to reveal a lack of understanding of the purpose of the Act which this Agency administers. In our opinion, in view of the increasing need for expedition in the processing of cases, we have concluded that we ought not to expend the Board's limited resources on matters which have little or no meaning in effectuating the policies of the Act. Thus in this insubstantial case, we would find that the conduct involved, although it may have been in technical contravention of the statute as intrepret- ed by the Board, was nevertheless so insignificant and so largely remedied and rendered meaningless by the time." These warnings, however, were limited to soliciting dung working time and are therefore not unlawful . See Essex International, Inc, 211 NLRB 749(1974). BELLINGER SHIPYARDS, INC. 621 Respondent's subsequent conduct that we will not utilize it as a basis for either fording a violation or issuing a remedial order.3 Accordingly, the complaint herein should be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: The majority appears to believe that the violations found here by the Administrative Law Judge are not serious enough to warrant a remedy. This position seems to reveal a fundamental lack of understanding of the purposes of the Act this Agency administers. Here, the record shows that the Charging Party started a drive to organize the Respondent's employ- ees during September 1975. To achieve this end, the Union appointed an in-plant organizing committee to solicit authorization cards. From September 1975 until February 5, 1976, this committee encountered a substantial obstacle: a written company rule, con- tained in a pamphlet distributed to every employee when- hired, prohibiting without qualification all solicitation, circulation of petitions, and distribution of written material.4 This rule certainly had to have acted as an impediment to the committee's efforts to organize the Respondent's employees, an activity that is, to remind the majority, protected by the Acts I therefore agree with the Administrative Law Judge's finding that the rule violated Section 8(a)(l). I also agree with his findings that Combs' warnings to Cosper, Velez, and Boggess during the fall of 1975 violated the Act. Combs told Velez and Boggess that the Company's rule prohibited solicitation during "working time" and that both could be disciplined for violating it. The rule, however, as written covered all soliciting, obviously including that done during working time. Thus, Velez and Boggess would have readily understood the rule to apply to nonworking time also. I note further that during his conversation with Combs, Cosper asked Combs whether "working time included lunch breaks. Combs replied by saying that the meaning of "working time" was "pretty self explanatory." If the phrase` "working time" was "pretty self explanatory," Cosper would not have asked this question. By refusing to clarify what was meant by "working time," Combs created another ambiguity, viz, did the no-solicitation rule also apply to lunch breaks? I doubt that after Combs' warnings these three in- plant organizers would have risked being disciplined to test the scope of the rule. Thus, all three, as well as any other employee who learned of these warnings, would have surely avoided soliciting during nonwork- ing time. For this reason, I would fmd Combs' warnings restrained lawful solicitation and, therefore, violated Section 8(a)(1). Having found the above violations, I would order the Respondent to act affirmatively to remedy them. "The power to command affirmative action is ... a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act. "6 I would fmd that the purposes of the Act have been thwarted here. By ordering the Respondent to post the usual notice, we would inform the employees involved of their rights, of the fact that they were violated, and that the Respondent would not violate them again. This, to me, would encourage the free exercise of the Section 7 right at issue and thereby remove the consequences of the Respondent's unlawful conduct.? By refusing to order that a notice be posted, the majority effectively condones the violations committed here .8 3 See American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620 (1973). 4 Rule 18 of tins pamphlet prohibited: Solicitation, subscription, sale of tickets, circulation of petitions, posting or distribution of handbills or placards or any other material without proper authorization. 5 Precedent requires that we find that this rule, as a matter of law, restrained lawful solicitation. LO.R Glass, Inc., 216 NLRB 845,848 (1975). 6 Consolidated Edison Company of New York, Inc v. N LR.B, 305 U.S. 197, 236 (1938). r The Respondent's posting of a revised no-sohcitation rule does not accomplish this result. 8 The majority cites Deringer Mfg. Company, supra as controlling here. There, the Administrative Law Judge's decision, which a panel comprising Chairman Miller and Members Kennedy and Penello adopted, found that "the employees knew of and felt the restraint of the illegal [no-solicitation) rule after it was promulgated," but that no order was warranted because no employee was adversely affected by the rule. By "adversely affected," the Administrative Law Judge apparently meant that no employee had been disciplined for violating the rule TheAdrninistrativeLawJudge apparently did not believe that an order was necessary to remedy the employer's restraint of lawful solicitation. I do not think that case was correctly decided. . DECISION STATEMENT OF THE CASE PAUL E. WEn,, Administrative Law Judge: On December 30, 1975, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL- CIO, hereinafter called the Union, filed with the Regional Director for Region 12 of the National Labor Relations Board, hereinafter called the Board, a,charge alleging that Bellinger Shipyards, Inc., hereinafter called Respondent, violated Section 8(a)(1) and (3) by various acts and conduct. On March 5, 1976, the Regional Director for Region 12 issued a complaint and notice of hearing alleging that Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and/or enforcing an invalid no- solicitation rule and by calling employees designated by the Union as in-plant organizers into the office of the plant manager, questioning the employees, advising them that the conversation was being taped, and threatening that they 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be subject to disciplinary action if they solicited for the Union during their working time. Respondent duly filed an answer admitting the jurisdictional allegations of the complaint but denying the commission of any unfair labor practices. On the issues thus joined the matter came on for hearing before me at Jacksonville, Florida, on May 11, 1976. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence. After the hearing, a brief was received from Respondent. On the entire record of this case and in consideration of the brief, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Florida corporation engaged in the business of building and repairing ships in Jacksonville, Florida. Respondent annually performs services in excess of $50,000 for employers meeting direct jurisdictional standards of the Board. Respondent annually purchases and receives goods and materials valued in excess of $50,000 shipped to it in Jacksonville, Florida, directly from points located outside the State of Florida. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent operates a small shipyard in Jacksonville, Floridri, where it employs about 300 employees building, maintaining, and repairing seagoing vessels. Respondent is a subsidiary of Jacksonville Shipyards, a much larger enterprise, located nearby. The employees of Jacksonville Shipyards are represented by the Union, but the employees of Respondent have never been represented in the past although an abortive attempt was made to organize the employees in 1972. In September 1975 the Union again commenced organizing among Respondent's employees, handing out cards and talking to people at the gate and in the parking lot. Commencing shortly after the organizing campaign began the Union sent letters to Respondent informing it of the appointment of various employees as in- plant organizers. Since at least 1970 Jacksonville Shipyards has had in effect a booklet called "A Safety Instruction and General Company Rules." The booklet is occasionally reissued. It appears that the paragraph regarding solicitation had not been changed during those 5 years until February 5, 1976. Prior to that date, the paragraph appeared in the booklet as follows: I Respondent presented in evidence transcripts of the tape recordings of the three interviews . The transcripts were reviewed by the General Counsel together with the employees who testified After his review and a small 18. SOLICITATION. Solicitation, subscription, sale of tickets, circulation of petitions, posting or distribu- tion of hand bills or placards or any other material without proper authorization. The company rules, including that quoted above, are preceded in the booklet by the following statement: Any employee who violates any of the general Compa- ny rules may be temporarily laid-off or discharged, either after a warning or immediately, without a warning. The General Counsel called three employee witnesses, each of whom had been designated to Respondent as an in- plant organizer. Each of them were called into the office of the plant manager, where they were interviewed by the plant manager in the presence of a man known to none of the employees but believed to be an official from the parent company, Jacksonville Shipyards. In fact the man was Joseph McNulty, industrial relations manager for Jackson- ville Shipyards. In each case Plant Manager Combs first warned the employee that the conversation was being taped and then advised him that Respondent had received a telegram or a mailgram or a letter from the Union saying that the employee was representing the Union as an in- plant organizer. Combs then asked each employee whether he was aware of those letters being sent . Two of the three employees stated that they were aware that the letters had been sent; the thud, a Spanish-speaking employee, did not answer responsively. Combs then went on to say that the reason the employee was asked to come into the office was to tell him that Respondent has solicitation rules that prohibit active solicitation "on your working time." In two of the three interviews Combs pointed out that breach of the no- solicitation rule could result in disciplinary action. In one of the three interviews,' that with James T. Cosper, Combs additionally stated that he had received a report that Cosper had approached an employee to solicit him during Cosper's working time, but that since Combs had not spoken to Cosper he would only caution him that this would not be tolerated but that any repetition would result in disciplinary action. Cosper denied talking to anyone except during his lunch break and asked who had made the report; Combs refused to state the informant's name. On February 5, 1976, Respondent posted a new rule on all the bulletin boards, on which notices are normally posted, and in all handbooks handed out after February 5, 1976. Typed copies of the new rule were placed in the handbooks handed out and the old rule was stricken out by pen or pencil. On February 27, one of the three employees interviewed, Velez, was given a reprimand in the nature of a warning stating "Violation of company rule number 18 enacted February 5, 1976. Further violation of this rule will result in immediate discharge." change having been made on one of the three transcripts, the General Counsel withdrew his objection to their receipt My conclusions with regard to the interview are drawn entirely from the transcript. BELLINGER SHIPYARDS, INC. 623 B. Discussions and Conclusions No one, contends that the rule that appears in the employee handbook prior to February 5 was lawful. No one contends that the rule that was posted on February 5 and appeared in the handbooks distributed thereafter was unlawful. The General Counsel seeks an order that Respon- dent post a notice that it will, not thus violate the Act. Respondent contends, first, that the Union acquiesced in the establishment or maintenance of the rule at the parent company and should not be heard to complain when it came up against the same rule in the course of trying to organize the subsidiary. This argument has surface appeal until it is recalled that we are concerned with the public rights of the employees rather than the Union and the documents on which- we are proceeding are a complaint by the Board against Respondent which was simply set in motion by the Union's charge. I reject the argument. ` Respondent additionally argues that the complaint, dated March 5, 1976, alleges the maintenance of the rule while the record reveals that the rule was replaced by a lawful one on February 5, 1976 and that there was no showing that anyone could have been, affected by the existence of -the rule prior to that point. Indeed Respondent argues that it is unlikely that anyone was aware of the existence of the rule. The record reveals that the rule had-never been enforced at the Jacksonville plant or at the Bellinger plant prior to union organization, and perhaps during union organization the rule was not enforced with regard to solicitation for a blood bank, or United Fund, or the sellers of safety shoes, all of whom solicited on employees' worktime. Neverthe- less, the rule was enforced to the extent that Combs called each of the employees into the office to remind him of the rule as soon as Combs learned that the, employee was designated-as an in-plant organizer. Finally, it is clear that the new rule is being enforced inasmuch as Velez- has received a warning and a threat of discharge if he repeated in-plant organizing on his own time. I agree with the Respondent that there is no-vice in the warning to the -employee that the conversation was being taped. I find that the Respondent violated Section 8(a)(1) by the imposition of the rule in the employee handbook and by calling the Attention of the employees to the rule through the meetings with Combs. The fact that Combs in each instance informed the employees that they were not to solicit on their working time serves only to render the rule ambiguous since no such limitation was found in the rule. With regard the promulgation of the new rule, which no one contends to be unlawful, I do not find that Respondent adequately compensated for the unfair labor practices already committed. It is true that the new rule was posted everywhere that the old rule had been posted and was promulgated in all employee handbooks handed out after February 5, 1976; but no attempt was made to undo the effect of the personal interviews between the plant manager and the in-plant organizers that-caused the old rule to gain vitality in the plant. I believe that Respondent' s rescission of the unlawful rule should be accomplished with at least as much ceremony as its enforcement of the old. Accordingly, I shall recommend that Respondent be found guilty of the unfair labor practice charged andrequired to disseminate a notice in a format likely to come to the attention of the employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE Respondent's violation of Section 8(a)(1) of the Act occurring in connection with its operations set forth above has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Bellinger Shipyards, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. - 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL- CIO, is a labor organization within the meaning of Section 2(5)-of the Act. 3. By promulgating and enforcing a no-solicitation rule forbidding solicitation at any time on Respondent's premis- es,. Respondent interfered with, restrained, and coerced employees in the exercise of the rights - guaranteed in Section 7 of the Act thereby violating Section 8(a)(1) of the Act. - 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies and purposes of the Act. [Recommended Order omitted from publication.]