Grumman Flxible Corporation

GRUMMAN FLXIBLE CORPORATION Grumman Flxible Corporation' and Elvis Mitchell Gilt. Case 8-CA-13490 September 28, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBEIRS FANNING AND ZIMMERMAN On September 25. 1981, Administrative Law Judge Russell M. King, Jr., issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the 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 briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith,- and to adopt his recommended Order, as modified. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) of the Act by dis- charging employee Elvis Mitchell Gilt "solely be- cause he expressed an intention to file a workmen's compensation claim." Assuming, arguendo, that Gilt's request for workmen's compensation papers was protected activity, we disagree with the Ad- ministrative Law Judge's finding that Gilt's dis- charge was motivated by Respondent's desire to protect its workmen's compensation liability.4 As I Respondent's name has been rnisspeiled throughout the Administra- tive liaw Judge's Decision The correct spelling is as indicated above. I Respondent has excepted to certain credtbility findings made by the Administrative L.ar Judge It is the Board', established policy not to overrule an adnministrative lai Ijudge's reCsluti(lns with respect to credi- bilit) unless the clear prepo,.ldernce of ill of the relexant evidence con- vinces us that the resolutions Ire inc.rrect Srandard Dr Wa/ll Products. Inc., 91 NIRB 544 (1950(i enfdi 188 F2' d 2 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. :4 We agree Mwlith the Admtinistraltite I is. Judge that it is improper to consider the salidit) otf Reponndcnt, 198s I 9 solicitalion and distribution rules since Iheir validity was 1not fully litigate.d We therefore find it un- necessary to determine whether the rules are facially valid under the Board's standard in effect at the time of their issuance. In finding the 1978 rules siolatiie, Chairmaln \'an de Water does not rely on I:R.W Bearing. Di'viion, a Divisioni o I:R. :. Inc., 257 NLRB 442 (1981). See his dissent in Intermcdics. Inc. and Surgironics Corporalion, a wholly owned vubsidiary of Jntermdnnidc. Inc.. 262 NLRB 1407 (1982) 4 The Administratise L.awI Judge considers significant Gilt's credited testimony that nurse l.ois McDaniel iold him that to pursue his claim would be "wasting his time and [he] would never win." The Administra- tive Law Judge interprets this statement to convicy a message of the utlil- ity of seeking benefits in the face of Respondent's strong interest in pro- tecting its liabililty. Hoitozeer the remark is open to another at least equally plausible interpretation -that based on her familiarity with Gilt's symptoms and work en,,ironment, she did not consider the condition to be work-related Moreover. regardless of the import or McDaniel's state- ment, it is not entirely clear that she las as agent of. and thus speaking on behalf of, the Resplndenlt 264 NLRB No. 34 the Administrative Law Judge found. Gilt was either tardy or absent a total of II days during his 31-day term of employment with Respondent. Prior to reporting any ear discomfort. Gilt had al- ready been recorded tardy or partially absent on six occasions. During that time he had been cau- tioned by his supervisor, Mike Nussbaum, to im- prove his attendance record. Later, in a November 28, 1980, progress report, Nussbaum cited the need for improvement in Gilt's attendance and, in issu- ing the report, counseled Gilt personally on the matter. The report did approve Gilt's retention, but Nussbaum, who had never previously caused the termination of a probationary employee, consulted with Gilt's other supervisor, Robert Grennell, and both supervisors subsequently raised the issue of termination with the personnel department. As the Administrative Law Judge notes, several other pro- bationary employees had been fired for poor at- tendance records that year. Consequently, the deci- sion to terminate Gilt was consistent with Re- spondent's past practice of dealing with probation- ers with unsatisfactory attendance records. Under these circumstances, we conclude that Gilt's dis- charge was motivated not by his expressed inten- tion to file a workmen's compensation claim but by his poor record of attendance. ' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Grumman Fixible Corporation, Loudonville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(d). 2. Delete paragraphs 2(b) and (c). 3. Substitute the attached notice for that of the Administrative Law Judge. 6 The General Counsel excepts to the Adminlslratlse I, as Judge's finding that a question in Respondent's employmenll applicationl cotncern- ing prior workmen's compensation claims did not violale Sec 8XlaK(I of the Act. In Ohio Brass Comrpany, 261 Nl RB 17 (1982), the loa;lrd fi,uld no violation in a similar job application inquiry. deeming it "a pertinclll question bearing upon the applicant's histors of personal injur. " Member Zimmerman concurred in Ihat decision oIn the grotund that the mere inquiry into the filing of past claims cannolt be found unlawsful in the absence of es idence of unla ful mlotise Ilcre no Itkh iull:ls fill pur- pose is involved in the inquir5 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain an invalid no-distri- bution rule which prohibits employees from distributing written or printed matter of any description on company premises at any time, with or without the specific authority of man- agement. WE WILL NOT maintain an invalid no-solici- tation rule which prohibits unauthorized solici- tation for any purpose whatsoever on compa- ny premises. WE WII.L NOT enter into any labor agree- ment with the United Steelworkers of Amer- ica, AFL-CIO, CLC, which restricts the post- ing of notices or the distribution of any kind of literature on company property other than the posting of official union notices on union-in- stalled and union-maintained bulletin boards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights guaranteed them in Section 7 of the National Labor Rela- tions Act. GRUMMAN FLXIBLE CORPORATION DECISION RUSSELL M. KING, JR., Administrative Law Judge: This case' was heard by me in Mansfield, Ohio, on Oc- tober 8 and 9, 1980. The charge was filed by the Elvis Mitchell Gilt, an individual against the Respondent Em- ployer (herein called the Company) on January 14, 1980. A complaint was issued February 29, 1980, by the Re- gional Director of Region 8 of the National Labor Rela- tions Board (herein called the Board), on behalf of the Board's General Counsel, and the complaint (as amended during the hearing) alleges, inter alia, the discriminatory discharge of Gilt on December 6, 1979,2 because he had previously expressed an intent to file a workmen's com- pensation claim in violation of Section 8(a)(l) of the Na- tional Labor Relations Act (herein called the Act).3 The I Originally consolidated with this case for hearing was Case 8-CA- 13769, involving the individual charging party. Isaac Sturgeon. The (en- eral Counsel's unopposed motion to sever that case was granted at the commencement of this proceeding. 2 All dates hereafter are in 1979 unless otherwise mentioned. 3 The pertinent parts of the Act involved in this case are as follows: Sec. 7. Employees shall have the right to self-organization, to formn, join, or assist labor organizations, 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 protection .. . complaint further alleges the improper maintenance of rules restricting the use of company bulletin boards, and the improper maintenance of an overly broad no-solicita- tion rule, in violation of Section 8(a)(1) of the Act. The complaint also alleges that the Company improperly "maintained," through contract provisions, overly re- strictive use and posting rules in connection with bulletin hoards installed on company premises by the United Steel Workers of America, AFL-CIO, CLC (herein called the Union), in violation of Section 8(a)(1) of the Act.4 Lastly, the complaint alleges (by amendment during the hearing) that the Company improperly includ- ed a question regarding the receipt of "compensation or insurance for a work injury" in its employment applica- tion, in violation of Section 8(a)(l) of the Act. The Com- pany generally denies the allegations and alleges that Gilt was discharged for good cause (tardiness and absen- teeism). Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed herein by the General Counsel and the Respondent. I make the following: FINDINGS OF FACTS I. JURISDICTION The pleadings and admissions herein establish the fol- lowing jurisdictional facts. The Respondent is and has been at all times material herein a corporation duly orga- nized and existing under the laws of the State of Dela- ware, with a place of business or plant in Loudonville, Ohio, where it is engaged in the manufacture of transit buses. Annually, in the course and conduct of its business operations, the Respondent ships goods valued in excess of $50,000 directly to points outside the State of Ohio. Thus, and as admitted, I find and conclude that the Re- spondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Sec 8(a) It shall be an unfair labor practice for an employer-- (I) to interfere with, restrain, or coerce employees ill the exercise of the rights guaranteed in Section 7. The union represents the company's production employees and its contract with the company contained the alleged objectional provisions. No charge was filed against the union in this case I he facts found herein are based on the record as a whole and upon my observation of the witnesses The findings herein are in part based on credibility resolutions which have been derived from a review of the cnrir, testimonial record and exhibits with due regard for the logic of probability. the demeanor of the witnesses, and the teaching of L. R.B. v Ulalion Mianufactruring Compon,, 369 U.S. 404. 408 (1962). As to those testifying in contradiction of the findings herein. their testimony has been discredited either as having been in conflict with the testimony of credi- blc witnesses or because it was in and of itself incredible and unworthy of belief. All testimorny and evidence, regardless of whether or not men- lioned or alluded to herein, has been reviewed and weighed in light of the cliro record 228 GRUMMAN FLXIBLE CORPORATION 11. ALLEGED UNFAIR LABOR PRACTICES A. Summary of the Testimony and Evidences 1. Testimony of employee Elvis Gilt Elvis Mitchell Gilt testified that he had been employed by the Company as sawer-trimmer (or grinder) from Oc- tober 22, 1979, until December 6, 1979, the day he was discharged. He worked the second shift from 3:30 p.m. to midnight and reported to Supervisors Robert Grennell (supervisor of the second floor), or Mike Nussbaum (su- pervisor of the second floor) when Grennell was not there. Gilt described his duties as routing and grinding fiberglass bus parts, front enclosures, rear-end enclosures, and two different types of side panels. The routing and grinding room was described by Gilt as covered with fi- berglass, dust, cold, and without a heater. During rain, water would drip in his work room. Due to the type of work Gilt was engaged in, a particular clothing was re- quired. He wore insulated underwear, heavy flannel shirts, blue jeans, a pair of coveralls, and the Company gave him a self-contained air helmet to wear for protec- tion. According to Gilt the helmet was made out of plas- tic material that had a clear face mask over it and it had a cloth that came down that could be tacked inside of his shirt. A belt was strapped to his waist on which an air- conditioning unit was strapped. The air-conditioning unit pumped air into the helmet. Gilt indicated that air also came in from outside (outdoors) during the months of October, November, and December. Gilt testified that prior to his employment with the Company he had never sought medical help for an ear condition, but that during his employment with the Company he visited the Com- pany's nurse (McDaniel) on November 19 and left work early. On November 20 he did not work and saw his wife's doctor, Dr. John Jentes who gave him a work excuse for leaving work early the previous day. Gilt testified that subsequent to seeing Dr. Jentes he continued to experience discomfort with his ears and began to have an erratic work attendance record. Gilt related that on November 21 he did not work but went by the plant and spoke with Supervisor Grennell who in- formed him to "do what the doctor told [him] to do," adding that "ears are an important part of your body and you have to be extremely careful of it, and that he un- derstood [his] feelings about not reporting to work, and he said he would see [him] the following day." The fol- lowing 2 days (November 22 and 23) were Thanksgiving holidays and the following week Gilt reported timely for work Monday through Thursday, but on Friday (No- vember 20) he left early because his ear hurt. Before leaving that day Supervisor Nussbaum had changed his work area, but according to Gilt this change proved un- successful in alleviating his ear problems, and Nussbaum I The following includes a summary of the testimony of the witnesses appearing in the case The testimony will appear normally in narrative from, although on occasion some testimony will appear as actual quotes from the transcript The narrative only and merely represents a summary of what the witness themselves stated or related, without credibility de- terminations unless indicated, and does not reflect my ultimate findings and conclusions in this case. Not all documentary evidence admitted in the case is included or mentioned in the summary, and references to such evidence will appear later herein therefore told him to go home. Gilt also indicated that Nussbaum requested that he "get a medical slip from the doctor and . . . take [it] . .. to personnel the following Monday." The following Monday (December 3) Gilt reported early to personnel and after waiting 40 minutes he spoke with one Judy Edwards in personnel about the condi- tions he worked under and about the possibility of a job transfer from the department he worked in. 7 Edwards told him that at the time there were no openings and he would "just have to bear it." Gilt then requested work- men's compensation from Edwards, who informed him that personnel did not handle such matters but the nurse did. Prior to departing for the nurse's office Edwards said, "Well we hate to have to see you quit." Gilt then went to nurse McDaniel's office, asked for the work- men's compensation papers, and also gave McDaniel "the doctor's slip."8 Gilt testified that McDaniel then told him "that it is worthless for [him] to do such a thing because [he] couldn't prove that [he] was just wasting [his] time." Gilt indicated he persisted in his request for the papers, explaining "that it was [his] choice" and McDaniel again responded that he would be "wasting [his] time because there would be a lengthy hearing and everything and [he] would never win." Gilt left without obtaining the workmen's compensation papers from McDaniel. Gilt then reported for work and soon thereaf- ter spoke with Supervisors Nussbaum and Grennell re- garding his unsuccessful attempts to transfer to another department, and again requested workmen's compensa- tion papers. According to Gilt this request was disre- garded, and Nussbaum told him to go back to work. On Thursday, December 6, Supervisor Nussbaum in- formed Gilt that personnel had decided to discharge him. Gilt asked why, and Nusbaum replied that he should talk to Personnel Officer Furman Manley. Gilt made an ap- pointment with Manley December 10 and, at that time, according to Gilt, Manley stated that his dismissal was due to poor workmanship and grinding too many parts. In January 1980, with the help of the Union, Gilt filed a workmen's compensation claim and eventually did re- ceive some money as a result of his claim. Gilt also filed a grievance on December II over his discharge. The grievance reached the third step of the grievance proce- dure and was again denied by the Company on January 29, 1980.9 The reason given for Gilt's discharge was his tardiness and absenteeism. t On February 8, 1980, the Union withdrew the grievance. I ' Gill arrived earlier than normal and thus did not "punch-in" timely because of a company policy. set forth in the employee handbook. that employees may not punch in more than 30 minutes earl. Gilt's attend- ance record reflects that he worked 7.7 hours on December 3 8 The work excuse slip that Dr. Jentes had given Gilt on November 20, pertaining to his early departure from work on November 19. vWas admitted into evidence. The record, however, is uncertain as to whether this "doctor's slip" was the same. The slip from Dr Jentes was the only one admited in the case 9 The union contract with the Company pros ided for a foiur-step grievance procedure, with the fourth step being arbitration. 'o Gilt's attendance records indicated lie sas discharged for "unsatis- factory probation period." " The charge in this case had already been filed (on January 14, 1980). 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gilt testified that he was tardy six or seven times, and indicated one was due to his wife's prenatal examination, another for car repairs, and several others (3 or 4 min- utes) were due to parking problems outside the plant.' 2 During his testimony Gilt also identified his employment application which included the question "Have you ever applied for or received compensation or insurance for a work injury?" ' 3 2. Testimony of employee Edward Safran Edward Safran, who was president of the union local, had worked for the Company for 10 years. Safran testi- fied that the normal termination period for probationary employees, such as Gilt, was their last week or 41st through 45th days. 4 According to Safran, Industrial Re- lations Representative Furman Manley justified Gilt's early dismissal by citing his poor work quality. Safran testified, however, that during the second and third steps of Gilt's grievance proceedings the Company held stead- fast with its position that the reason for Gilt's termina- tion was absenteeism. Safran identified the union contract with the Company which commenced on August 27, 1977, and expired on August 10, 1980.15 Safran testified regarding the Compa- ny's no-solicitation rule as set forth in the Company's rules of conduct. 6 According to Safran the rules of con- l' Gilt's formal attendance record, although difficult to understand in some places, reflects that he was tardy six or seven times (four times by 6 minutes, once by 18 minutes, and once by approximately 90 minutes). 13 The application was admitted into evidence, and Gilt answered the question "No." 14 There was an exception in the electrical department. 'a Art. XXIII is entitled "Bulletin Boards" and reads as follows: SECTION 1 The Union may install nine (9) lockable bulletin boards, at the Lou- donville facility and one (I) lockable bulletin board at the Millers- burg facility, in mutually agreed upon locations, to be used by the Union for the posting of official Union notices. The Local Union President shall designate, by written notification to the Company's Industrial Relations Department, the name of the Union Officer who is authorized to post such notices at each facility. Prior to posting, the designated Union Officer shall present to the Industrial Relations Department a copy of the notice to be posted. SECTION 2 The Union notices shall be used only for the purpose of notifying employees within the bargaining unit of official Union business, and shall not be used for, or directed to, employees outside the Bargain- ing Unit; nor shall such Union notices be used for organizational ac- tivities or Union membership solicitation. Further, there shall be no controversial matter contained in any notice the Union desires to post. SECTION 3 There shall be no other posting of notices by employees, nor other general distributions of pamphlets, advertising, political matter, or any other kind of literature upon Company property other than that herein provided. A new contract was entered into on August 29, 1980. Slight changes were made to sees. I and 2, and sec. 3 was excluded. '6 These rules, entitled "Rules of Conduct," were dated January 1978 and were admitted into evidence. Under shop rules, group B, the follow- ing is prohibited: "Distributing, posting (or removal) of notices, signs, lit- erature, petitions, written or printed matter of any description on bulletin boards or company premises at any time without the specific authority of duct had been and were currently in effect and he indi- cated that a point system was applied to nonprobationary employees, as opposed to probationary employees. Safran also indicated that the company had a policy which permitted a supervisor to allow an employee, for real and compelling reasons, time off not to exceed 5 days. Regarding injury records, Safran testified that he at one time had free access to all such records. This policy was then changed to deny him access to any records, but later he was granted permission to see such records re- garding employees that had requested his representation. 3. Testimony of Industrial Relations Manager Willhite Joel Willhite testified as the Company's present man- ager of industrial relations, indicating that both Industrial Relations Representative Furman Manley and Supervisor Bob Grennell were no longer with the Company. Ac- cording to Willhire Manley was terminated in January 1980 and Grennell resigned because of health reasons in April or May 1980, and now resides in Florida. Willhite testified that during Gilt's employment (October 22 to December 6) he was tardy on seven occasions, and absent 2 partial days and 2 full days due to illness, adding that only I partial day was "verified by a doctor." Willhite further testified that Gilt was tardy or absent 11 days out of the 31 days he was employed. Willhite maintained that the Company's position regard- ing Gilt was that his "attendance record was not accept- able, and therefore he was terminated." 4. Testimony of Supervisor Michael Nussbaum Michael K. Nussbaum would, on occasion, supervise Gilt. According lo Nussbaum he received only favorable comments about the type of hood Gilt used on the job, and no employee ever complained of any physical dis- management." Under shop rules, group C, the following is prohibited: "Distributing, posting (or removal) of notices, signs, literature. petitions, written or printed matter of any description on bullentin boards or com- pany premises at any time without the specific authority of manage- ment." Under shop rules, group C, the following is prohibited: "Unau- thorized soliciting or collecting contributions for any purpose whatsoever on Company premises." Under the group C rules, employees were "sub- ject to discharge" on the first offense. Under group B rules the first of- fense carried a written warning, second offense a 5-day suspension, and third offense "subject to discharge." In June 1980 the Company issued new rules of conduct which contained the following regarding solicita- tion and distribution: Distribution of printed matter or solicitation for any purpose by non-employees on the Company premises is not permitted at any time. Any visitor engaged in solicitation or distribution will be re- quired to leave Company premises immediately. Solicitation by employees or the collection of contributions for any purpose (civic, charitable, political, etc.) is not pernitted during working time. Working time includes either the working time of the employee doing the soliciting or the employee being solicited. Distribution of literature, petitions or printed matter of any kind by employees is not permitted in working areas at any time. Group B of new shop rules prohibits "Posting (or removal) of notices, signs, literature, petitions, written or printed matter of any description on bullentin boards or Company premises at any time without the specific authority of management." Group C of the new rules prohibits "Distribu- tion of printed matter, solicitation or collecting contributions in violation of the Rules of Conduct." 230 GRUMMAN FLXIBLE CORPORATION comforts, physical injury, sickness, or ill health because of wearing the hoods. Nussbaum also denied that Gilt had ever asked him for any compensation forms.'17 5. Testimony of Nurse Lois McDaniel The Company's industrial nurse, Lois Marie McDan- iel, testified that Gilt made a request to her to have his position changed, indicating that he was having problems with the hood and had ear problems. She then informed him of the requirement of written documentation from a doctor before she could make any recommendations. Ac- cording to McDaniel, Gilt also stated he "wanted to file a workmen's compensation form" for payment of his medical bills regarding his ear infection. McDaniel indi- cated she then informed Gilt that she "would be happy to file a claim for him, but it would be unusual and therefore it would probably be the Company's position that it would be set for hearing." Gilt later filed a work- men's compensation claim and, according to McDaniel, she then contacted and talked with Carmen Hall, who subsequently forwarded a memo to her indicating that Gilt's ear problems had not been "industrial related."' 8 McDaniel testified that the Company ultimately paid $12 on Gilt's claim and this was paid by computer error of their "actuary" Company. On cross-examination McDaniel indicated that the Company was "self-insured" regarding workmen's com- pensation payments, but if a claim were deemed meritori- ous the Company would pay the claim directly. McDan- iel added that, although the Company voluntarily paid some claims, she informed Gilt that the reason his claim would not be paid by the Company was due to its classi- fication as an "occupational disease" and the Company's policy regarding these types of cases was to "set them for hearing." Regarding Gilt's ear problems, McDaniel did indicate that she suggested to Gilt that he wear a to- boggan hat, and that Gilt disregard her suggestion. B. The Employment Application The Company's employment application contained a question as to whether the applicant had "ever applied for or received compensation or insurance for a work injury?"'l The complaint, as amended, alleges that the inclusion or presence of the question is a violation of Section 8(a)(1) of the Act. 20 Besides the actual existence of the question, there is no evidence in the record as to the Company's reason or need for the question, other than the fact that the Company was self-insured. The "' Nussbaum had completed a "Prohationary Period Progress Report" on Gilt dated November 28, which was admitted into evidence This progress report noted that Gilt showed interest in his job, noted "aver- age" work performance (adding "improvement can be made"), and indi- cated Gilt was "-cooperative" The report also noted under attendance "improvement expected (tardiness)." and recommended Gilt's retention "with improvement in attendance and performance" 18 The memo was admitted into evidence. It was dated Februars 21, 1980, and is headed, "EFrom the desk of . John P. Jentes, M D [and] Daniel R Daughertl, M1 ) 'D It a,: signed by Carmen Hall, as insurance clerk. ' The application also inquired a.i to "chronic ailmens." "ph.'ica l disabilities," "operatlions." and "severe illnesses" 20 This allegation sas inlscrted into the complaint by amendment during the hearing Board has held that an employment application inquiry into employees' past concerted activities regarding union affiliation is violative of the Act.2 ' The Board has also held that a claim for unemployment compensation is pro- tected concerted activity,2 2 as well as an expressed intent to file a workmen's compensation claim.23 In its brief the General Counsel argues in this case that the question regarding claims both attempts to elicit informa- tion to be used as the basis of a hiring decision, and serves as a chilling effect to perspective employees not to file such claims should they be hired, thus having a reasonable tendency to coerce employees in the exercise of their rights. I disagree in this case. I am unwilling to draw such inferences or conclusions from the mere exist- ence of the question on the application, without further evidence. In my opinion to do so would be an overly broad, blanket, and unwarranted extension of what the Board has considered as protected and concerted activi- ties or acts. I thus find no violation of the Act regarding the existence of the "compensation or insurance" ques- tion on the employment application. C. The Discharge of Employee Gilt Paragraph 8 of the complaint alleges that Gilt was dis- charged in violation of Section 8(a)(l) of the Act because he "expressed an intention to file a claim with the Ohio Bureau of Worker's Compensation." As indicated earlier, the Board has held that such expressed intentions are protected concerted activity under the Act.24 That Gilt expressed such intentions at least on Monday, December 3, is uncontested in this case. After two uneventful and full work days (December 4 and 5), Gilt was discharged on December 6.25 Gilt commenced his employment on October 22 as a probationary employee.2fi The Company maintains that Gilt was either tardy or absent some II out of 31 work- ing days, which .constituted the sole reason for his dis- charge.2 7 The record and evidence does support these 2 Hoarel .4laska. Inc.. 236 NI.RB 1458 (1978). 22 Selt CclIe d .lMarilne Distributor Co.. Inc. 237 NL.RB 75 (1978) 23 Krispy Kreme Doughnut Corp. 245 NLRB 1053 (1979), citing Self Cycle, supra Enforcement was denied by the Fourth Circuit in Krispy Kreme. 635 F 2d 304 (1980). This fact and other related matters will he discussed later in this Decision regarding Gilt's discharge 24 Krispy Krene. supra The five-member Board (then Chairman Fan- ling and Members Jenkins. Penello. Murphy. and Truesdale) reasoned, as in Self Cycle. supra. that such benefits arise out of the employment rela- tionship and are of common interest to other employees The U S Fourth Circuit Court of Appeals felt differently and denied enforcement i635 F.2d 304). citing among other cases, ARO. Inc., 596 F.2d 713 (6th Cir. 1979) The initial decision in 4RO. Inc., was authored by me. and on ex- ceptions was reversed by the Board (227 NLRB 243) The Sixth Circuit denied enforcement Notwithstanding the foregoing. it is my lot herein to consider Krispy Kreme as Board precedent. which I am bound to follow 25 Gilt filed a grievance over the discharge on December II On Janu- ary 14. 1980. he filed the charge in this case The grievance was denied at the third step of the grievance procedure, short of arbilration On Febru- ary 8. 1980, the grievance was withdrawn. The complaint issued in this case on February 29, 1980. : The union contract specified that all new employees were proba- tionary employees. without seniority. for "forty-five (45) consecutive work days." Gilt's probationary period would have been up approximate- ly December 30 (considering holidays) 27 Gilt testified that Personnel Officer Manley later told him he war discharged for poor workmanship Union President (and employee) Continued 231 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD contentions by the Company regarding Gilt's attendance record. 25 However, on November 28 Supervisor Nuss- baum completed and signed Gilt's "Probationary Period Progress Report," recommending Gilt's retention "with improvement in attendance and performance."29 At this point Gilt was 6 working days from his discharge, and some 19 days short of the end of his probationary period During the 6-day period Gilt left early on November 30 at Supervisor Nussbaum's suggestion,3 0 and on Decem- ber 3 was some 15 minutes late actually checking in by virtue of having gone to the personnel office where he inquired about workmen's compensation forms.3 ' Gilt worked full days December 4 and 5. I find in this case that Gilt was discharged solely be- cause he expressed an intention to file a workmen's com- pensation claim.:t2 Gilt was given only 6 days out of ap- proximately 19 days to further prove himself, after his retention had been recommended. His early departure on November 30 was condoned by his supervisor and his later reporting on December 3 was not his fault. The Company was self-insured for workmen's compensation and strongly protected its liability. As nurse McDaniel put it during Gilt's visit the early morning of December 3, Gilt would be "wasting [his] time . . and would never win." :':' Having found that Gilt's expressed intentions to file a workmen's compensation claim resulted in his discharge, I am constrained to further find and conclude that under the Board's present law,3 4 Gilt was discriminatorily dis- charged in v iolation of Section 8(a)(1) of the Act, as al- leged in paragraphs 8 and 10 of the complaint. Safrlral confiriled, l his Itsinlmlm Manley's stated reason for Gilt'% dis- charge Manlc . 11o hllgcr with the Conpany, did Inot tesiify. Ilie Com- paIty' indlultri.d telatlioIn manager. Joel Willhitc. testified. withruti uicer- lintyi that the dischlargCe a.is due solely to Gilt's attiedalce reco rd I takt tIhls to he the Cornpmiiy's po1ll1tol ill this case " I le ri c I or i ild exhibits reflec that Gilt was late sonie 5 to It) mill- tiWes o1i October 25 and Noembrhcr 2. 5. and 7 Gilt was also late October 31 arlld l)ecemlher 3. (O) Deceniber 3 he arrived early to go to personnel He a.ls too cally to clock inl but reported to work after he finished with personncl Oni Noveimber 19 he left 2 hours early after seeing the nurse, fior wShich he later obhtained a doclor's excuse. Gilt did not report for woirk )oi No'vemtlber 20 anid 21. and on November 30 he left 4 hours earls at Supervisor Nussbaum's suggestion. i Tlhe evidence refclecs that other probationary employees during the year had hee both lrejected (several for poor attendance records) and re- tailed. :"' iilt's attendance records reflect Nussbaum's suggestion to (Gilt on Nos.ember 30. :l Later oil December 3 (;ilt also asked Supervisors Nussbaum and Grelnell l tior sorkmen's compensation papers. He never received the papers or filrms florn the Companly and, finally, aided by the Unionll he filed a claim in January 1980. A 11 its defense in this case, the Company never raised the issue of Gilt's tar problems, or the fact that this problem may have eventually rendered anll enlployl)ment with the Comllpany impossible. To have taken this approach may vcll have enlhanlced adsersely the Company's claim exposure Htoweser, this is speculative alid I make no such finding in this case. :: Nurse McDaniel, in her testimiony, denied these remarks claimed by Gilt, but did concede that she told Gilt the Company "would probably · set [the matter] fior hearing'" I credit Gilt over McDaniel here, aind credit Gilt's testimony throughout this case a4 See Krispv Kremelm Doughnut Corp.. supra D. The Company's Distribution and Solicitation Rules In January 1978 the Company published its "Rules of Conduct" which contained, among other things, certain "Shop Rules" which carried penalties for their violation. Among these rules appeared the following violations re- garding distribution and solicitation: Distributing, posting (or removal) of notices, signs, literature, petitions, written or printed matter of any description on bulletin boards on Company premises at any time without specific authority of manage- ment. Unauthorized soliciting or collecting contributions for any purpose whatsoever on Company premises. In June 1980 the Company published new "Rules of Conduct" which changed the word "Distributing," above, to "Posting" and replaced the above "Unauthor- ized" solicitation clause with simply the following: Distribution of printed matter, solicitation or col- lecting contributions in violation of the Rules of Conduct. This replacement clause referred to a newly inserted sec- tion in the general rules section (as opposed to the "Shop Rules") which reads as follows: SOLICITATION AND DISTRIBUTION Distribution of printed matter or solicitation for any purpose by non-employees on the Company premises is not permitted at any time. Any visitor engaged in solicitation or distribution will be re- quired to leave Company premises immediately. Solicitation by employees or the collection of contributions for any purpose (civic, charitable, po- litical, etc.) is not permitted during working time. Working time includes either the working time of the employee doing the soliciting or the employee being solicited. Distribution of literature, petitions or printed matter of any kind by employees is not permitted in working areas at any time. There was no issue in this case regarding distribution and enforcement of the rules cited above and I thus find that they were duly distributed and enforced.3 5 Basic considerations regarding distribution and solicita- tion rules involve a proper adjustment between the un- 3i The record is simply void of any evidence on the subject except Union President Safran's testimony that the new rules had not been sub- mitted to the Union Safran was apparently referring to art. XXIV, sec. 1, of the union contract with the Company which reads as follows: The Company shall have the right ito promulgate, establish, alter, amend arid enforce reasonable shop rules relating to the conduct and efficiency of employees and Company operations. Any additions or deletions will be provided to the Union Negotiating Committee for infosrmation purposes prior to the incorporation of such changes. The Union shall have the right to process a grievance on any rule changes or additions which they deen uinfair There was also no evidence presented in the case as to whether the old or new rules were in ally way clarified by the Company to the employ- ees 232 GRUMMAN FLXIBLE CORPORATION disputed right of self-organization assured employees under the Act and the equally undisputed right of em- ployers to maintain discipline in their establishments. 3 6 A broad guideline has been that, so long as distribution was by employees to employees and in-plant solicitation was on "non-working" time, to prohibit the same in such cases might well be violative of the Act.3 7 Until recently the Board distinguished between prohibitions during "working time" and during "working hours," holding that "working time" restrictions were valid on their face and "working hours" restrictions were invalid unless their impact on lunch and break time were clarified.3 8 However, the Board recently held that both phrases ("working time" and "working hours"), without further clarification, were presumptively invalid.39 With the above basic guidelines in mind, I find that the January 1978 rules were in effect until 1980 and were violative of Section 8(a)(l) of the Act as alleged in para- graphs 5, 6, and 10 of the complaint. The rules were far from even ambiguous. They simply prohibited any and all distribution "at any time without specific authority of management," and any and all "unauthorized soliciting . . . for any purpose whatsoever on Company premises." I am not called upon in this case to make any findings regarding the 1980 rules of conduct, which were pub- lished after the issuance of the complaint but before the hearing in this case. The 1980 rules prohibited distribu- tion and solicitation only by "non-employees" and re- stricted employee solicitation to "working time." These rules, on their face, conformed to what the Board's standard for validity was at the time. 4 0 Their validity was thus not seriously contested or litigated on the record. I thus feel that it would be improper at this time for me to attempt an analysis of the 1980 rules in light of the Board's recent alteration of its earlier standard, 4 t or in light of any other authority. I do find, however, that the publication of the 1980 rules did not extinguish the earlier violations resulting from the 1978 rules, and as found herein. '42 a1 Republic Aviotion Corporation v N.L.R.B., 324 U.S. 793 (1945). The Coulrt also added that the "dommant purpose" of the Act is the "right of employees to organize for mutual aid without employer interference." :N7 L.R. B. v. Magnavox Company of Tennessee, 414 U.S. I 1109 (1974). "' Essex International, Inc., 211 NLRB 749, (1974). In this case. Mem- bers Fanning and Jenkins dissented and would have found both phrases, standing alone, to be ambiguous and invalid. " TR. W Bearing Division, a Division of T.R. W. Inc., 257 NLRB 442 (1981) (by a three-member Board comprised by then Chairman Fanning and Members Jenkins and Zimmerman). " Eotex Internanional. Inc., supra. 4T R. RW Bearing Division. a Division of T R. 1i. Inc., supra. 42 I recognize that the 1980 rule changes may well have been a good- faith effort on the part of the Company to remedy the earlier defects, and it would not be any intention herein to condemn any such efforts on the part of this or any other employer who may be so motivated. The Getter- al Counsel argues in his brief that, for various reasons, the 1980 rule is also violative of the Act. and urges a finding to that effect in this case. As indicated above. I conclude that to do so would be improper in this case, and I further feel that such a finding is not necessary to preserve the violations attributable to the earlier rules. By the testimony of Union President Safran and Industrial Relations Manager Willhite (himself), I find that the news rules had not been effectively distributed to the em- ployees or suficiently promulgated to effect a repudiation of the old rules. E. lthe Bullelinl Board Provisions of the Union Coptlrocl4;' On August 22, 1977. the Union and the Company en- tered into their collective-bargaining agreement. Article XXIII contained three sections dealing with the use of some nine union bulletin boards at the plant. Section I restricted use of the bulletin boards to the Union "for the posting of official Union notices." One union officer was to be designated as the officer "authorized to post such notices." Section 2 restricted the bulletin boards use to notifying "bargaining unit" employees only of "official Union business," excluded their use for "organizational activities or Union membership solicitation," and further excluded the posting of "controversial matter" in any notice to be posted. Section 3 prohibited all other post- ings of notices and "other general distributions" of any kind. On August 29, 1980, a new collective-bargaining agreement became effective with two sections regarding union bulletin boards.4 4 Section I remained essentially the same. Section 2 contains no "official Union business" restriction and substitutes "inflammatory matter" for "controversial matter." The General Counsel argues in his brief that section 3 of the 1977 contract was the objectionable section in that contract, and I agree and so find that it was in violation of Section 8(a)(1) of the Act as alleged in the complaint. In contrast, I find that sections I and 2 of the 1977 con- tract, standing alone, were within the legal bounds.4 5 Section 3 in the earlier contract served to be more re- strictive than the Company's rules which I have earlier found herein to be violative of the Act. The section pro- hibited "other general distribution" by all employees except that permitted in sections I and 2. 46 The exclu- sion of section 3 from the 1980 contract did not of course abolish its prior existence and effects and, as in the case of the rules, the record lacks evidence that the employees were actually informed of the significant dele- tion, whether in connection with the 1980 rule changes or Inot. 4 7 The same 3-year existence of the no-distribu- tion clause (sec. 3) in the 1977 contract in violation of Section 8(a)(1) of the Act in my opinion was in no way extinguished by its exclusion in the 1980 contract. In these findings I have taken into consideration the long period of the section's existence, its obvious illegality, and the Board's implicit and prompt requirements for renouncement. 43 As indicated earlier. no charge '.as filed against the Union in this case, thus the complaint lonily alleges the Company jiolated the Act re- garding the existance of these pros sions. .4 The complaint In the ca,,e was also not amended to allege any viola- tiolis as a result of the ne, contract Sec 3 off the 97-7 cointr.lcl was enx cluded completely 45 See v L.R.B. v .Magnavox Company of Ienneswel. suprau, FIrd Motor Company (Rouge Complex/, 233 NL RB 698 (1977): and Generacl Motors Corporation, Delco Moraine Divosion, 237 NLRB 15019 (1978) If I had been confronted in this case ssith the validity of sees I and 2 int the 1980 con- tract, my concLlusions ould hbe the amine 16 I deer it uninipoirtanl toi discuss the question of preemption of the rules by the contracl. as testified Io by Union President Safr;lan In my opinion. they hoth, together ior separately. served Io restrict the rights of the employees 47 .41/s Chalmernrs Corporatrion. 224 NI.RB 1199. (1976): General Ther- modvnaomis. Inc . 253 NI RB 180 (1980) 233 DECISIONS 0() NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings ot fact, and upon the entire record. I hereby make the foliowing: CoNCl.USIONS O: L\AW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By publishing and maintaining an invalid no-distri- bution rule which prohibited employees from distributing written or printed matter of any description on company premises at any time without the specific authority of management. the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. By publishing and maintaining an invalid no-solicita- tion rule which prohibited unauthorized soliciting for any purpose whatsoever on company premises, the Re- spondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By entering into a labor agreement with the United Steelworkers of America, AFL-CIO, CLC, restricting the posting of notices or the distribution of any kind of literature on company property other than the posting of official union notices on union-installed and union-main- tained bulletin boards, the Respondent engaged in unfair labor practices in violation of Section 8(a)(l) of the Act. 5. By unlawfully discharging employee Elvis Mitchell Gilt on December 6. 1079, because he earlier expressed an intention to file a workmen's compensation claim, the Respondent violated Section 8(a)(1) of the Act. 6. Except those violations concluded in paragraphs 2 through 5, above, the Respondent has not otherwise vio- lated the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THI- REMEIDY In order to remedy the unfair labor practices found herein, my recommended Order will require the Re- spondent to cease and desist from further violations, to post an appropriate notice to employees, and to offer uin- conditional reinstatement to Elvis Mitchell Gilt and make him whole for all wages lost by him as a result of his unlawful discharge, such backpay and interest there- on to be computed in the manner prescribed in F: W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation. 231 NLRB 651 1977). 4 8 Upon the basis of the foregoing findings of fact, con- clusions of law. and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4'' The Respondent, Gruman Flexible Corporation, Lou- donville, Ohio, its officers, agents, successors, and as- signs, shall: '4 See, generally, Isis Plumbing & Itfeaing Co., 138 N.RB 716 (1962). 49 In the event no exceptions are filed as pros ded by Sec 102.46 of the Rules and Regulations of the National l.abor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in Sec. 1()248 of the Rules and Regulations. be adopted by the Board and 1. Cease and desist from: (a) Maintaining or enforcing a broad no-distribution rule prohibiting employees from distributing written or printed matter of any description on company premises at any time, with or without the specific authority of management, so as to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. (b) Maintaining or enforcing a broad no-solicitation rule which prohibits the unauthorized solicitation by em- ployees on company premises for any purpose, so as to interfere with, restrain, or coerce employees in the exer- cise of the rights under Section 7 of the Act. (c) Maintaining, enforcing, or renewing any contrac- tual provision with the United Steelworkers of America, AFL-CIO, CLC, restricting the posting of' notices or the distribution of any kind of literature on company proper- ty except the posting of official union notices on union- installed and union-maintained bulletin boards, so as to interfere with, restrain, or coerce employees in the exer- cise of their rights under Section 7 of the Act. (d) Discharging or otherwise discriminating against employees because they expressed an intention to file a workmen's compensation claim, thereby interfering with, restraining, or coercing employees in the exercising of their rights under Section 7 of the Act. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Elvis Mitchell Gilt immediate, full, and un- conditional reinstatement to his former position or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make the said Elvis Mitchell Gilt whole for any loss of pay suf- fered as a result of his unlawful discharge in the manner set forth in that portion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Loudonville, Ohio, facility copies of the attached notice marked "Appendix." 5 ° Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that becomne its findings, conclusions, and Order. and all objections thereto shall he deenmed waived for all purposes. sal In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National i ahor Relations Board 234 GRUMMAN FLXIBLE CORPORATION said notices are not altered, defaced. or covered by any other material. (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 235