Stewart-Warner Corp.

STEWART-WARNER CORP. 219 Stewart-Warner Corporation and Kathleen Walker. Case 13-CA-12773 NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government December 3, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 27, 1974, Administrative Law Judge Sidney D. Goldberg issued the attached Decision in this pro- ceeding. 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 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. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Stewart-Warner Corpo- ration, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Delete paragraph 1(a) of the Administrative Law Judge's recommended Order and, in lieu thereof, sub- stitute the following: "(a) Promulgating, publishing, or maintaining in ef- fect any plant rule forbidding employees during non- working time and in nonworking areas, from circulat- ing petitions which constitute concerted activities for the purpose of collective bargaining or other mutual aid or protection." 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. ' In the absence of exceptions to the dismissal of the 8(a)(3) charge, we adopt, pro forma, the finding of the Administrative Law Judge that the discharge of Kathleen Walker did not violate the Act APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE After a trial in which all parties participated and had a chance to give evidence, a decision has been issued that we violated Section 8(a)(1) of the National Labor Relations Act, as amended, in the following respects; (1) by promulgating, publishing, or maintaining in ef- fect any plant rule forbidding employees during non- working time and in nonworking areas, from circulat- ing petitions which constitute concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) by threatening to discharge any em- ployee who, at such times and at that place, circulates such petition. Based upon this Decision, the Board has or- dered us to post this notice to assure our em- ployees that any such rule, and any threats made in support of it, are hereby canceled and with- drawn; that WE WILL NOT again issue such rule or make such threats and that WE WILL NOT, in any other similar or related manner, interfere with, restrain, or coerce them in the exercise of their rights, under Section 7 of the National Labor Re- lations Act, to carry on proper activities for mutual aid or protection. STEWART-WARNER CORPORATION DECISION SIDNEY D. GOLDBERG, Administrative Law Judge: This case, which was tried before me in Chicago , Illinois, on Feb- ruary 26, 1974, presents two issues: whether respondent pro- mulgated an unlawful no-solicitation rule, and whether it discharged the charging party for engaging in protected ac- tivities. The amended complaint,' pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), alleges that Stewart-Warner Corporation (respondent or the company), on and after June 25, 1973, interfered with, re- strained, and coerced employees in their exercise of rights protected by the Act by promulgating and maintaining a no-solicitation rule that was not only too broad in its terms, but which was directed against employees to cause them to terminate their activities against Local 1031, International Brotherhood of Electrical Workers, AFL-CIO (the union). It also alleges that, on or about October 18, 1973, respondent discharged Kathleen Walker because she engaged in union and/or concerted activities for the purpose of collective bar- gaining or mutual aid or protection. Respondent answered, admitting that it had discharged Kathleen Walker but denying that it had done so because of her protected activities and it denied that it had promulgated and maintained an unlawful no-solicitation rule. The issues so raised came on for trial before me as set forth above. All parties were represented; they were afforded an opportunity Issued February 8, 1974, on a charge filed October 31, 1973 215 NLRB No. 47 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to adduce evidence, cross-examine witnesses, and argue on the facts and the law. Briefs filed by the General Counsel and by counsel for respondent have been considered. For the reasons hereinafter set forth in detail, I find that respondent, by the statements of Roy DePnest, its general foreman, promulgated a rule prohibiting the distribution of leaflets and the solicitation of support in concerted activities at all times on company property including prior to work and during break periods, and that it thereby interfered with the protected activities of its employees. I find, however, that Kathleen Walker was discharged for cause, namely, insubor- dination, rather than for concerted or otherwise protected activities. Upon the entire record herein, including the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. The parties a. The employer Respondent is a Virginia corporation which operates se- veral plants, including at least two in Chicago. The plant at 1826 West Diversey Avenue, with which this case is con- cerned, manufactures gauges and other components for au- tomobiles and other machines. It admits that it receives more than $50,000 in imports each year and that it is an employer engaged in commerce. I so find. The West Diversey Avenue plant covers a square block and the building is at least six stones high Its operations are organized into departments. Those numbered 21, 22, and 24, all under the supervision of General Foreman Roy DePriest, are involved in this case. His assistant is Paul Balutis and there are several "working foremen," not alleged to be super- visors, at the various assembly lines. The other company officials involved in this case are Philip Johnson, director of industrial relations, Lawrence Anderson, personnel director, and Ronald Eubanks, manager of hourly personnel. b. The union Local 1031, Independent Brotherhood of Electrical Work- ers, AFL-CIO, is admittedly a labor organization and it represents the production and maintenance employees of Ste- wart-Warner at the West Diversey Avenue plant. It has a collective-bargaining contract with the employer, the term of which covers the period of the activities involved in this case. Robert J. Meyers is its treasurer and business agent for Stewart-Warner. Netta Lohrmann is the union steward cov- ering departments 21, 22, and 24. 2. Summary of events a. Background With the single exception described below, the facts herein are undisputed. Kathleen Walker was hired by Stewart-Warner on Febru- ary 28, 1972, as an assembler, and she was thereafter pro- moted to calibrator. She voluntarily became a member of Local 1031 about 90 days after the commencement of her employment. In November 1972, during the negotiation of the contract between the union and the company, several employees in the plant, including Walker, were dissatisfied with the terms being accepted by the union. They also op- posed its officials and they decided to publish and distribute, to the employees at the plant, leaflets and a newsletter stating their views. The newsletter was called "TALK BACK" and was thereafter issued at irregular intervals of 2 or 3 weeks; it called attention to shortcomings on the part of Stewart- Warner or the plant officials and it upbraided the officials of Local 1031 for doing nothing about the conditions concern- ing which it complained. The articles in "TALK BACK" were not signed and there was no disclosure of the names of the persons involved in its publication. In January 1973,2 Walker was working on the night shift in department 24 on the fifth floor. She applied to DePriest for transfer to the day shift. It was on a Tuesday when she made her application and DePriest promised her an answer by Friday. On the same day as she made this application for transfer, Walker, who is white, and two other female em- ployees, who are black, received warning slips for poor work. The three employees concluded that the warning slips were manifestations of racial bias, 'and they signed and filed a grievance. The following day Walker told her supervisor that she no longer wanted the transfer and asked her to so inform DePnest. A week later, DePriest called Walker to his office on the second floor and said he had a day-shift job for her in department 22, located on that floor; Walker said she no longer wanted to transfer to day work, but DePriest said that he had "no more use" for her in department 24, that she had been "poking her nose into things that weren't any of her business," and that, if she refused to accept the transfer, she would be "out on the street " She accepted the transfer and DePriest told her to start in department 22 the following Monday and "to mind her own business."' b. The no-solicitation rule In June, Walker was working in department 21, where her line supervisor was Charlotte Alexander. Walker and several other employees were offended by Alexander's conduct in whistling at them to attract their attention rather than calling them by name and by her cursing them. Several of the em- ployees, including Walker, met at the home of another em- ployee, Erica Krupak, on Tuesday, June 19, and they pre- pared a petition for signature by the employees. They decided not to request signatures at once but to determine how many employees would sign if requested. During the balance of that week, Walker talked with four or five fellow employees, tell- ing them that a petition was being prepared, and asking them whether they would sign it or whether they had other ideas of how to deal with Alexander's abusive conduct. During the same time, Krupak had copies of the petition made and, on Friday, she brought the petition to the plant and gave it to Walker, who put it in her locker. On Monday morning, Walker testified, she arrived at the plant at 7:10 a.m., although her starting time was not until 2 All dates hereafter are 1973 3 This incident occurred more than 6 months prior to the filing of the charge herein but was presented as "background evidence " DePnest did not deny the statements attributed to him by Walker STEWART-WARNER CORP. 221 7:45. She showed the petition to two employees in the locker room and asked them to sign it; one said she would when there were other names on it and the other said she was afraid to do so because she was still a probationary employee. Walker then took the petition to the line area and showed it to an employee named Irma, but Irma said she did not under- stand English. At that point, Walker testified, she was ac- costed by Alexander who said: "I understand you are getting up a petition against me," to which she made a noncommittal comment and Alexander then said: "That is okay. I am through with you. I am going to the office about it. That is it," and walked toward the office. Walker testified that she continued to talk with Irma for a few minutes and, when the starting bell rang, she went to work. Shortly thereafter Alex- ander came back and took her to DePriest's office where there were, in addition to DePriest and his secretary, Assist- ant Foreman Balutis and the union steward, Lohrmann. According to Walker, DePnest greeted her by saying: "I understand you are circulating a petition to get rid of Char- lotte. Are you?" and, when she answered "No," he said: "If you are, I will fire you." At that point, Alexander said she had witnesses and she left the office, returning shortly with employees Irma, Angela Cordera, and Betty Arsenault. De- Pnest referred angrily to a leaflet and an issue of "TALK BACK" that had been distributed that day and said that the distributions of these "have got to stop!" He then asked Ar- senault whether she knew anything about "a petition being circulated against Charlotte"; Arsenault said she had been asked to sign one the. previous week but refused to say whether it was Walker who asked her to sign. DePnest then said to Walker: "If I can prove you are circulating this peti- tion I will fire you," and sent her back to work. Later that day, Walker testified, Alexander stated, in a loud voice but to no one in particular, that she was through with Walker and was going to get rid of her The following day, Walker testified, she met Arsenault at the coffee machine and asked her why she had told DePnest about the petition; Arsenault answered that she would say what she pleased and became agitated, saying: "Do you want to lose your job? I will tell him who asked me to sign." Arsenault started to walk away and Walker said, she testified "I will see you after work," whereupon Arsenault answered. "If you try anything I will break your neck." Walker returned to work and, shortly thereafter, saw Arsenault and Alexander in an agitated conversation; both of them were crying, and they went,toward DePriest's office. Walker was summoned to the office and, again, found Balutis and Lohrmann there. DePriest asked Walker if she had threatened Arsenault's life; she denied it and told DePriest the details of the conversation at the coffee machine, explaining that her reference to seeing Arsenault after work was based upon the fact that they both used the same bus and that she intended to talk with Ar- senault. Walker further testified that DePnest thereupon sent for Arsenault and, when she came in, he asked her whether Walker had threatened her; that Arsenault said "Yes" and DePriest asked her what Walker had said; that Arsenault answered that Walker had said she would "beat her ass"; and that she, Walker, protested that that was not what she had said. DePnest then made a remark about bringing in'some gloves, letting the two of them-her and Arsenault-fight and then he could fire both of them, but he asked Arsenault whether she had witnesses. Arsenault said she had, and the two she named were brought into the office, but they stated that, while they could see that Walker and Arsenault were angry, they could not hear what they said to each other. DePriest then sent Arsenault and her witnesses from the room, Walker testified, and he said to her. "I don't know what I am going to do with you, but I know you and Erica have been circulating a petition against Charlotte. I am going to have to do something." Walker denied circulating any petition and DePnest said he was going to suspend her for 3 days. When Walker asked what for, DePnest read to her from company rule number 1, attached to the collective- bargaining contract, something about creating a dis- turbance.' Walker then questioned DePriest about what he meant by "creating a disturbance" and he answered: "You and Erica have been circulating a petition. We can't have petitions going around. I have eight witnesses that you have been doing that." Walker testified that she asked DePnest to prove it and that he said- "Betty said that you two were circulating the petition," whereupon she said that it was Ar- senault's word against hers. At this point DePnest said "I could fire you. I have notes here on everything you have been doing. You have been involved with threats before."5 Walker again demanded proof and DePnest instructed his secretary to prepare a warning slip, telling Walker that it was a "final warning" and meant that, the next time, she would be fired. He told her she could file a grievance on it and to go and punch out. DePnest's testimony concerning this incident differs in some degree from that of Walker, set forth above, and consti- tutes the single factual dispute in the case DePnest testified that, on June 25, Alexander came to his office, upset, and told him that "Walker was circulating a petition on the line to get rid of her and she wanted something done about it"; that he asked her who else knew about it, and that she named a couple of other employees, whereupon he called Walker and the other employees, Arsenault, Irma, and another, into his office. He asked them whether a petition was being circulated on the line; Walker said "No" and the others said "Yes," so he said, "I can't stand for lines being disrupted because of this and we couldn't tolerate it on Company time and Company property. . ."6 He testified that he sug- gested that they all go back to work and forget about the matter; that the employees left; and that he administered no disciplinary measures that day. The following day, DePriest testified, Arsenault came into his office, shaken and crying, and she said that Walker had threatened her. DePnest called in the union steward and 4 The introductory portion of these rules states, inter aka "The failure of any employee to abide by these rules will be cause for disciplinary action which includes discharge in proper cases," and the rule numbered "1" starts "Causing a disturbance on Company property, such as might be caused by fighting or attempting bodily injury to another employee 5 DePriest testified that early in 1973 Betty Erle, a "working supervisor," complained that she had been threatened by three employees, including Walker, but the three had denied making-the threats and the matter was dropped No reliance is placed on this testimony 6 On cross-examination , DePriest testified that he asked Walker whether she was circulating a petition, that she said "no", and that he then said if she was "it couldn't be passed out or distributed on Company time or Company property " 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walker After talking with both Walker and Arsenault, De- Priest gave Walker a 3-day suspension. Lohrmann testified that on June 25 she was called into DePriest's office and found Walker and Alexander there. Alexander was upset and said that Walker "had a petition going around against [her] to get rid of her." DePriest then asked Walker if that was so and she said "No," whereupon Alexander said that there were people who could verify her statement. DePriest sent for three employees, asked them whether a petition was being passed around, and they said "Yes." DePriest then said, according to Lohrmann, that "this would have to be straightened out and that there couldn't be any of this kind of stuff going on in working hours." Walker filed a grievance over her suspension and a hearing on it was held with company and union officials present on July 6. At this meeting, the record shows, Walker, Meyers, DePriest, and Anderson, all made references to the petition that Walker was charged with circulating on June 25 and the time of day when she circulated it. Walker testified that DePriest stated that she had been suspended for circulating a petition and making threats to Arsenault; that Anderson asked her whether she had circulated a petition and, when she said "no," he said: "It is company policy not to circulate a petition on company time or company property"; and that Meyers then attempted to determine whether the activity occurred "on company time." DePriest admitted that there was some discussion of the petition at the grievance meeting, but he testified that he did not recall whether Walker had attributed to him the state- ment "If you do start a petition you will be fired," and he testified that he did not remember what was said at the meet- ing. He admitted, however, that the employees who had been called in by him on June 25 were again called into the griev- ance hearing and that they were questioned concerning the petition, but he denied that he made any statement at this meeting concerning when petitions were permissible. Ander- son's testimony also shows that the petition was discussed at some length at the grievance meeting; he was not, however, asked whether he made the statement concerning petitions that was attributed to him by Walker. DePnest testified that no employee had ever been disciplined for distributing a peti- tion "on his own time" and Anderson testified that he had never heard of any employee being disciplined for "distribut- ing literature or making a speech on Company time or prop- erty." It is not disputed that Arsenault was not available at the time of the grievance hearing because she was no longer employed by the company and that Walker's grievance was sustained; she was paid for the 3 days she had been suspended and the matter was expunged from her record. c. The discharge of Walker Sometime in September, the company discharged Roy Kemp, a black employee at another company plant in Chicago. The "TALK BACK" group decided to take up his cause and the leading article of the issue dated October 8-12 carries the headline "REHIRE ROY KEMP " The text of the article accuses the union of failing to help Kemp and of helping the company. The next issue of "TALK BACK," dated October 16, also has a lead article headed "REHIRE ROY KEMP," but, sharing the upper half of the first page, is an article entitled "Walkout at Western Electric." The text of this article states that the walkout occurred without approval by the union representing the workers there and that Western Electric's management had called it a "wildcat strike," for the purpose of discharging the participants. At the end of this article, in large letters, appears the word "FLASH" and a state- ment that the workers at Western Electric had "won all their demands." According to both Walker and John Strucker, another employee involved, the "TALK BACK" group of employees met on October 17 and decided to have a public meeting with the union officials in the presence of company employees. It was ,agreed that Walker would disclose her participation in the " TALK BACK" project' either by conducting the meeting or by making a speech in the employees' cafeteria at lunchtime the following day; it was also agreed that a "TALK BACK" leaflet would be distributed the following morning announcing the meeting in the cafeteria and inviting the presence of Meyers, the union business agent, and Sam Patitucci, its chief steward. They agreed that reference would be made to the incident at Western Electric but that no walkout or slowdown would be advocated. The leaflet was distributed early the following morning and copies came to the attention of Anderson, respondent's direc- tor of personnel He testified that he notified the cafeteria manager of the planned incident and instructed him, if there was "any disruption of any consequence," to call the security personnel; he also called the security manager, who said that he had given instructions to his personnel to be ready. Since Anderson had a luncheon engagement, he instructed Eu- banks, the manager of hourly personnel, to be present and to note the events. The lunch period starts at 11:45 a.m. At a few minutes before 12, Walker stood up at one end of the dining room, said "Hello," stated her name and department, and an- nounced that she was from "TALK BACK". She then said that it looked like neither Meyers nor Pattitucci would show up and she began to talk about the case of Roy Kemp; she said that the company had a reputation for racial discrimination and did not treat black or Latin workers the same as they treated white workers, citing a specific case in which a black man had been suspended for 10 days for visiting his wife, who worked in another department, during the lunch period; she then talked about safety and health conditions in the plant, referring to three accidents the previous week and•cnticizing the lack of a wheel chair on the third floor. Walker stated that the salaries of Meyers and the union president were triple those of the workers and she said that they should be doing more to represent the workers. She said that the people in- volved in "TALK BACK" felt that there should be more meet- ings like this one, that they wanted to discuss reopening the contract in December, and that they wanted to discuss health and safety conditions. With respect to Roy Kemp, Walker suggested that the employees should call both Meyers and I Walker was chosen, they testified, because she is a woman and more than half of the company's employees are women. They also took into consideration the fact that she was pregnant and had stated her expectation of beginning her maternity leave in December and that, in view of her past difficulties with DePnest, it was unlikely that she would be permitted to return to work at the end of her maternity leave. STEWART-WARNER CORP. Anderson about it and put suggestions concerning it in the suggestion box. Walker testified that she referred to the walk- out at Western Electric but stated that the "TALK BACK" peo- ple did not advise a strike or a slowdown. She testified that she said it was a good example of cooperation among black, white, and Latin workers. Walker testified that she talked for a few minutes and then sat down to scattered applause. After lunch, she reutrned to work and worked until about 3 p.m. The testimony of Eubanks, who was sent to monitor the incident, did not contradict Walker's testimony. He testified that she spoke for about 10 minutes and that only the final 2 or 3 minutes were devoted to references to Western Electric, and he admitted that she had said that she was not advocating either a strike or a slowdown. He testified, however, that the tone of her voice, when she disavowed a strike or slowdown, was "sarcastic." About 2:30 that afternoon, Anderson returned from lunch and asked Eubanks what had happened in the lunchroom; Eubanks reported that Walker had made a brief talk and he gave Anderson its general contents. Their discussion, Eu- banks testified, took 5 to 10 minutes. Anderson testified that, just as Eubanks was finishing his report concerning Walker's speech, there was a call from Johnson, the company's director of industrial relations; that Johnson asked him whether he knew what had happened in the cafeteria; and that he told Johnson that Eubanks had just finished giving him a report on it. Johnson instructed Ander- son to bring both Walker and DePriest to his, Anderson's, office; he told Anderson to call Walker's attention to the no-strike provision in the contract and to explain to her the need to be careful in talking about slowdown. After receiving these instructions from Johnson, Anderson testified, he called DePnest and told him to come to his office and to bring Walker with him. He told DePriest that Walker had given a talk in the cafeteria but did not go into detail; he simply instructed DePriest to come to his office with Walker. DePriest testified that, when he received these instructions from Anderson, he instructed his secretary to page Walker over the public address system and that she did so, saying: "Kathy Walker: to the office" several times during a 2- minute period. When Walker did not appear in response to his secretary's paging, DePriest testified, he turned on the microphone on his desk and, about 8 or 10 times during a period of about 3 minutes, he called: "Kathy Walker: come to the officer." There was still no response, he testified, and then Trudy Rhinehart, the "group captain" of Walker's line, came in and said to him: "You are paging Kathy Walker and she said that, if you want her, you can come out on the line and see her." Upon receiving this message, DePriest testified, he instructed his assistant, Balutis, to go out to the line and tell Walker to come to his office and Balutis went out and returned with the same message from Walker: that if he wanted to see her, he could come out to the line. DePnest then telephoned Anderson and reported the situation; Ander- son said he would "get back to him." Anderson called back shortly and instructed him to take the union steward and some witnesses with him and to go out to the line and talk to Walker.' 8 As it was Anderson who wanted to talk with her, this cannot be con- strued as an instruction that DePriest should acquiesce in Walker's demand - 223 DePriest testified that he called the union steward to the office and, in her presence, he again paged Walker several times without result. He then took the steward and Balutis and they went to Walker's work station. DePriest testified that he asked her whether she had heard him paging her and she said that she had heard him; that he asked her why she had not come to the office; and that she said she had "a rate to make" and did not want to leave her position. DePriest then said: "Any other time I have called you you have always come, so now I want to see you in my office," but she said: "No, I am not going to go to your office." DePriest testified that he repeated his request and she repeated her refusal; that their voices were becoming loud and the people in the area were beginning to stop their work to note what was going on, so he said: "It leaves me no choice but to terminate you for disobeying me." When Walker still refused to move, he testi- fied, he told her that she no longer worked for Stewart- Warner, that she had been terminated, and he again re- quested that she go to the office. When she hesitated, DePriest threatened to have a guard escort her from the building and Walker finally picked up her things and went to the office with him. In the office, DePriest testified, he again asked her why she had refused to come to the office and pointed out to her that his request might have been based upon a call relating to illness in her family, but she remained silent. The notice of termination, signed by DePriest, states the reason for termination as: "Insubordination-Failure and refusal to follow foreman's instructions." Walker's testimony did not contradict that of DePriest in any respect. She testified that she heard herself paged first by DePriest's secretary and then by DePriest himsel' and that DePnest's voice was loud and angry; that Rhinehart asked her whether she wasn't being paged; that, when she said she was, Rlhinehart asked her why she didn't go to the office; and that she said she had a rate to make and asked Rhinehart to ask DePriest to come out to the line. She further testified that Rhinehart said: "Do you want me to tell Roy that?" and that she said "Yes." Walker testified that she then heard DePriest again page her and, shortly thereafter, Balutis came to her and asked whether she wasn't being paged; she said "Yes" and Balutis said: "Do you want me to tell him that?" to which she again said "Yes." Walker testified that she then heard DePriest page the union steward and they both came out to the line; that DePriest asked whether she had heard him page her and she said she had; that DePnest then asked why she had not come to to office and she said: "Why can't you speak to me out here?" DePnest then said that it was a personal matter and that he would discuss it with her in the office, but she answered: "You can speak here. It is okay with me." At that, Walker testified, DePriest said: "You are terminated"; he turned to those in the vicinity and said: "Did everybody hear that? She is terminated." Walker said she said to De- Priest "Why?" but, without answering her question, he said: "Are you going to come to the office now or am I going to have to call the guards to escort you out of here?" and that she picked up her purse and followed him to his office. When they were in the office, Walker testified, DePriest instructed his secretary to type up a termination notice for her and he told her that it was Anderson who had wanted to see her. She further testified that DePriest again asked her why she had refused to come to the office and that she answered that she 224 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD had "a rate to make," whereupon DePriest replied: "It do- esn't matter. You could have written it down on the time sheet." 3. Discussion and conclusions a. The no-solicitation rule The General Counsel contends that the evidence herein proves that, on June 25, DePnest promulgated a rule prohib- iting "all petitioning" and that he threatened Walker with discharge if she did so. Respondent contends that it is doubtful that the evidence on this point proves anything, certainly not the establishment of a too broad no-solicitation rule, and cites, in support of its argument, four facts from the record: (i) the uncontroverted testimony of both DePriest and Anderson that "no employee had ever been disciplined for distributing literature or making a speech on company property while on his own time" (em- phasis supplied); (ii) the only written rule on the subject of solicitation prohibits "making unauthorized collections"; (iii) there was ample cause for DePnest to believe that Walker had threatened Arsenault on June 26 when he suspended her; and (iv) the decision was in favor of Walker on the grievance she filed over that suspension. Respondent's contentions are all irrelevant: the matters to be determined in this phase of the case are: (i) what DePriest said on June 25 concerning the circulation of petitions and (ii) whether what he said constitutes the promulgation of a no- solicitation rule which interferes with, restrains, or coerces employees in their exercise of rights guaranteed by the Act. Moreover, whether or not DePriest threatened discharge for violation of this rule is only partly relevant on this phase of the case; it may be presumed that the employees to whom a rule is promulgated will have no doubt that their employer can, if it wishes, enforce it.' Turning, now, to the evidence concerning DePriest's state- ment : Walker testified,that he asked her whether she was "circulating a petition to get rid of Charlotte [Alexander]" and that, when the three other employees including Ar- senault were brought in, he asked them only whether they knew anything "about a petition being circulated against Charlotte." Moreover, according to Walker, DePriest's threat to her was that, if he could prove she was "circulating this petition," he would fire her. DePriest testified that his first knowledge of the matter was received when Alexander came to his office and told him that "Walker was circulating a petition on the line to get rid of her." While DePriest's testimony at this point includes a reference to "the line," it makes no mention of disruption of work, but its emphasis is upon Alexander's distress over the circulation of the petition.10 DePriest's testimony shows 9 The interference with employee rights apses from the promulgation and maintenance of the rule, the company's failure to enforce it against a particu- lar employee at a particular time cannot serve to avoid a finding of violation of the Act based thereon See: Farah Manufacturing Company, 187 NLRB 601, 602 (1970), enfd 450 F 2d 942 (CA. 5, 1971) 10 When he was first asked what Alexander told him, DePnest testified that she made the above statement and, when asked whether this was all she said, he answered "Yes " Shortly thereafter DePriest was again asked for Alexander's "exact words" and he answered "That Kathy Walker was that he had no personal knowledge of what Walker had done and Alexander was not called as a witness. Accordingly, there was nothing upon which DePriest could base a belief that the line was being disrupted when, he claimed, he said that he couldn't stand for it being disrupted. Moreover, DePnest's own testimony concerning his investigation, through his questioning of the three employees, was directed toward de- termining whether a petition was being circulated on the line, not whether its circulation interrupted or interfered with the employees' productivity On cross-examination, it is to be noted, DePriest dropped any reference to disruption of work and testified that he told Walker that a petition "couldn't be passed out on Comapny time or property." Lohrmann, the union steward and the only other partici- pant in that meeting who testified, must be regarded as an impartial witness, since Walker made herself as much an irritant to the union as she did to the company. Her testimony shows that DePnest's sole expressed concern was with the circulation of a petition and that he made no reference to any work "disruption." Finally, Meyers testified that, at the grievance hearing on July 6, DePriest's own statement of his position was that he had called in Walker and the other employees because "there had been a complaint about starting a petition," and DePriest did not contradict this testimony. Meyers also testified that the only reference to "disruption" was by Anderson when he gave that, together with Walker's threat to Arsenault, as the company's reason for giving Walker a 3-day suspension on June 26. In view of the testimony of Lohrmann and Meyers, as well as that of DePriest on cross-examination, I find that DePriest did not rely upon any "disruption" caused by the circulation of the petition and that the references in his testimony to such "disruption" were afterthoughts. I find that DePriest ad- dressed himself solely to the circulation of the petition and that he said that no petition could be circulated "on Company time or property." I also find that this constituted the pro- mulgation of a rule and that DePnest had the authority to do so on behalf of the company." The basic Board rule concerning solicitation, as set forth in Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 617 (1962), is that: an employer may in the normal situation make and en- force a rule forbidding his employees to engage in such union solicitation during working time ("working time is for work"), but that a broad rule banning such activity during nonworking time is presumptively invalid. circulating a petition to get rid of her " When again asked whether that was all that Alexander said, this time DePriest added "And she had the line disrupted because of trying to get people to sign it " It is to be noted that respondent did not call Alexander as a witness i i Walker also testified that, at the grievance meeting, Anderson stated "It is Company policy not to circulate a petition on Company time or Company property " Anderson's testimony shows that, although the issue under consideration was the validity of Walker's suspension on June 26, there was discussion of whether she had circulated a petition on June 25 Anderson could not recall Walker's statement that DePriest had threatened her with discharge if she circulated a petition and he did not specifically deny making the statement attributed to him by Walker In my opinion, however, this evidence is insufficient for a finding that Anderson made the statement as testified by Walker STEWART-WARNER CORP. Evolving from this basic rule are the individual adjudica- tions of the Board dealing with specific employer promulga- tions, particularly those in vague or general terms. The pre- cise term "working time," used by the Board in its formulation of the general rule, is quite different from the phrase "on Company time and Company property" used by DePriest in promulgating his oral rule. The attempt to pro- hibit solicitation "on Company time and Company property" obviously encompasses much more than an employee's "working time"; there are periods of time during which the employee is on company property but not at work-when getting from the entrance to his work station, prior to begin- ning work, during lunch and break periods, and at other times when he is not actually working. Similarly, being on "company time" does not necessarily mean the same thing as "working time" since getting from the timeclock to the work station and breaks of necessity, at least, are customarily on company time." To the extent, therefore, that the rule is ambiguous, and conveys to employees a prohibition of protected activity that is more extensive than permissible, respondent must assume the burden of the ambiguity it created.13 The rule identical to that promulgated by DePriest, prohib- iting protected activity" "on company time or property," has been repeatedly condemned by the Board as reasonably likely to be interpreted by employees as a prohibition of solici- tation during nonworking time.15 In the absence of any evi- dence showing justification for the rule, I find that DePriest's promulgation of it on June 25 interfered with, restrained, and coerced employees in their exercise of rights guaranteed by the Act and violated Section 8(a)(1) thereof. Since the promulgation of the rule was an unfair labor practice under Section 8(a)(1) of the Act, DePnest's threat to discharge Walker if she violated it was, a fortiori, also viola- tive of Section 8(a)(1).16 b. The discharge of Walker There is no dispute concerning the events leading to the discharge of Walker. The General Counsel contends that Walker's insubordination in refusing to go to the office was not the reason for her discharge , but that the discharge was the culmination of "a series of disciplinary steps taken against her by respondent whenever she engaged in protected activi- ties" and that it was the final step in the company's efforts, 12 DePriest testified that, in each hour, the company considers 8 minutes as "fatigue time" and does not expect productive work In addition, the contract contains provisions for 10-minute breaks in each of the two 4-hour periods of work and there is a provision for a short "clean-up" period before the end of the day All of these appear strongly to be "company time", i e , paid time, although clearly not "working time " "Avon Convalescent Center, Inc, 200 NLRB 702 (1972), enfd 490 F 2d 1384 (CA 6, 1974), Farah Manufacturing Co, 187 NLRB 601 (1970), enfd 450 F 2d 942 (C A 5, 1971), NLRB v Harold Miller, Herbert Charles and Milton Charles, Co-partners, dlb/a Miller-Charles and Company, 341 F 2d 870, 873-874 (C A 2, 1965), enfd 148 NLRB 1579 (1964) 14 That concerted expression of dissatisfaction with working conditions is protected activity, see K-Mart Enterprises, Inc., 202 NLRB 353 (1973). 15 WIPO, Inc., 199 NLRB 649 (1972); Marlene Industries Corporation, 166 NLRB 703 (1967), enfd. 406 F 2d 886 (C A 6, 1969) See also South- ern Electronics Co., Inc, 175 NLRB 69, 72 (1969), enfd 430 F 2d 1391 (C.A 6, 1970),striking down, as presumptively invalid, a rule barring solici- tation "of any kind on company property during working hours " 16 Joseph Horne Co, 186 NLRB 754 (1970) 225 that day, "to warn her against continuing her protected ac- tivities." The General Counsel also contends that, even if her insubordination was a reason for discharge, it was not respon- dent's only reason for discharging Walker and that, but for her protected activities, she would not have been discharged. The principal difficulty with the General Counsel' s argu- ment is that, on this record, it is not convincing. Anderson's direction to DePnest that he bring Walker to the personnel office where he could talk with her, although it is clear that he intended to talk with her about her speech, a protected activity, does not disclose either animus against such activity or an intention on his part to punish her for it. DePnest's request that Walker come to his office, although no reason for the request was included, was not unreasonable and it was clearly within DePriest's prerogatives as a representative of management. Walker's refusal itself, and much more her manner of refusing, constituted insubordination to a degree that the supervisor could not tolerate without completely losing his authority to control or supervise the employees under his supervision." Walker's own testimony clearly shows that it was her in- subordination in refusing a proper request that led to her dismissal and there is nothing in this record that would justify an inference that Walker's protected activities, on that day or at any other time, contributed in any degree to respondent's action in discharging her. Accordingly, I find that Walker was discharged for cause and that the complaint, insofar as it alleges that she was discriminated against for her union or concerted activities, must be dismissed. 4. The effect of the unfair labor practices upon commerce The activities of respondent, set forth in findings of fact numbered "2" and "3," occurring in connection with its operations set forth in finding of fact numbered "1," 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 thereof. 5. The remedy Having found that respondent, by promulgating a rule forbidding its employees from conducting activities protected by the Act and by threatening them with discharge therefor, engaged in an unfair labor practice, I shall recommend that it cease and desist therefrom. Upon the foregoing findings of fact and upon the entire record herein, I reach the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(5) of the Act. 2. The union is a labor organization within the meaning of Section 2(2) of the Act. 17 DePriest testified that, although Walker's was the most flagrant case of insubordination that he had encountered, all other employees who were insubordinate had been discharged No evidence contradicting this tes- timony was produced 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Roy DePnest is a supervisor of respondent within the meaning of-Section 2(11) of the Act and acted as its agent herein. 4. By promulgating a rule prohibiting the circulation of petitions "on Company time or property," respondent inter- fered with, restrained, and coerced employees in their exer- cise of rights guaranteed by the Act and committed an, unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. By threatening to discharge Kathleen Walker if she circulated a petition "on Company time or property," re- spondent interfered with, restrained, and coerced employees in their exercise of rights guaranteed by the Act and commit- ted an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 6. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, on the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER1e Respondent, Stewart-Warner Corporation, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Promulgating, publishing, or maintaining in effect any plant rule forbidding employees from circulating "on Com- pany time or property" petitions which constitute concerted activities for the purpose of collective bargaining or. other mutual aid or protection. (b) Threatening to discharge employees for circulating pe- titions of the said nature at the said times or place. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their right to self-organization, to form, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its plant at 1826 West Diversey Avenue, Chicago, Illinois, copies of the attached notice marked "Appendix."19 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. The allegations of the complaint, insofar as not found by the Decision to be violative of the Act, are hereby dismissed. 18 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. 19 In the event that the Board's Order is enforced by a Judgment of a 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 "