Consolidated Edison Co. Of New York, Inc.

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consolidated Edison Co. of New York, Inc. and Mi- chael McGarry and Utility Workers Union of America, Local 1-2, AFL-CIO, Party to the Contract. Case 2-CA-20343 11 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 7 March 1985 Administrative Law Judge Joel P. Biblowitz issued the attached decision. Charging Party Michael McGarry filed exceptions. The Respondent filed a motion to strike and a sup- porting brief and the Charging Party filed a re- sponse. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions" and brief and has decided to affirm the judge's rulings, findings 2 and conclusions3 and to adopt the recommended Order. Contrary to the views of our dissenting col- league, we find no merit to the Charging Party's exceptions to the judge's recommended dismissal of 8(a)(1) allegations that the Respondent's superin- tendent, Mechmann, unlawfully interrogated em- ployee McGarry and that the Respondent's district manager, Anelli, unlawfully told McGarry not to solicit on "company time."4 As more fully stated in the judge's recommended decision, McGarry was active in a dissident union group which had been formed in 1981 . These ac- tivities included distributing leaflets at the Re- spondent's facilities, including the Eastview facility. The particular events in question stemmed from McGarry's and the dissident group's dispute re- garding what occurred at a union meeting held 27 February 1982.5 At the meeting a certain vote had t We deny the Respondent's motion to strike the Charging Party's ex- ceptions 2 The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings 8 No exceptions were taken to the judge's findings that the Respond- ent's no-solicitation and no-distribution rules violate Sec. 8 (aXl) of the Act and that the Respondent further violated Sec. 8(a)(l) of the Act by disparately enforcing the rules against the Charging Party 4 Our allowing restriction on McGarry's solicitation activity is not equivalent to stating that McGarry was not engaged in concerted activity or that McGarry's concerted activities are not protected by the Act Ac- cordingly, Member Dennis miscontrues our position by making refer- ences to "the majority's finding that McGarry's solicitation activities should be denied the Act's protection " 6 Unless otherwise indicated , all dates are 1984 been taken by a show of hands; a claim was made, however, that it should have been conducted by a secret ballot. Beginning a day or two after the union meeting, McGarry began to solicit fellow employee-union members in the hallways of the Eastview facility. His solicitations continued daily prior to his work shift for the next month." The so- licitations consisted of McGarry approaching em- ployees in the hallways, explaining to them both the substance of a petition contesting the voting procedure used at the union meeting and a related affidavit which was intended to be filed in a pend- ing court case brought by the dissident group, and thereafter requesting that they sign these docu- ments. Due to the scheduling of employee work shifts, many of the employees McGarry solicited in the hallways had already started work.? On 1 March, at approximately 7:30 a. m., Super- intendent Mechmann went up to McGarry and asked what he was doing. McGarry responded that he was attempting to get arrested for soliciting. On 5 March Mechmann again approached McGarry while he was speaking to another employee in the hallway. Mechmann asked McGarry what he was doing, adding his boss wanted to know. McGarry responded that he was engaged in union activities. In early March District Manager Anelli ob- served McGarry speaking with a guard after the guard had started his work shift. Anelli approached McGarry and told him what he was doing was not right and that he should stop. Anelli explained that the Respondent had a right to have its employees not be interfered with on company time. Upon McGarry's insistence that he had a right to do what he was doing, Anelli said that he would check on it and get back to him. Two days later Anelli reaffirmed his remarks to McGarry and told him that he was not to speak to the Respondent's employees on company time interfering with their work. In dismissing the Mechmann-McGarry interroga- tion allegations, the judge applied the longstanding test, recently reiterated in Rossmore House,8 for evaluating whether interrogations violate the Act. The test set forth is whether under the circum- stances the interrogation reasonably tends to re- strain, coerce, or interfere with rights guaranteed 6 From 1 March to 23 March he solicited from approximately 6.45 to 7.55 a.m.; from 26 March to 6 April he solicited from approximately 6.45 to 7 30 am 7 The morning starting times for the over 400 employees who report to Eastview are principally 7 and 7.30 am Only a few employees start work as late as 8 a.m. Accordingly, during the first 3 weeks that McGarry solicited until 7.55 a.m., almost all employees had reported for work by that time. The alleged violations occurred during these initial weeks of McGarry's soliciting activity. 8 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985) 280 NLRB No. 39 CONSOLIDATED EDISON CO. by the Act.9 Noting that McGarry was a known participant in the dissident group who had that day or the previous day commenced soliciting his fellow employees to sign the petition and affidavit, and that many of the Respondent's employees at Eastview were on their worktime when McGarry solicited them, the judge concluded that Mech- mann's questions "were . . . not completely unwar- ranted." Thus he found that Mechmann's interroga- tions did not violate the Act. We agree. We stated in Rossmore House that we would "weigh the setting and nature of interrogations in- volving open and active union supporters." McGarry was a known union activist. But more importantly, he solicited his fellow employees to sign union material while they were on their work (as opposed to break) time.' ° The Respondent is entitled to have its employees perform their work free from interruptions. Consequently, it has the right to investigate apparent interferences with its employees carrying out their duties. Under these circumstances, we find that Mechmann's question- ing of McGarry was not unlawful. Accordingly, we affirm the judge's dismissal of this allegation. For similar reasons, we find that Anelli's admo- nition to McGarry that he not interfere with em- ployees on company time was also not unlawful. Our dissenting colleague's reliance on Florida Steel Corp., 215 NLRB 97 (1974), is readily distinguish- able. In that case it was held that rules against so- licitation during "company time" are unduly am- biguous and can easily be interpreted as a restric- tion on solicitation during breaktime or other peri- ods when employees are not actively at work. Any such ambiguity contained in Anelli's comment to McGarry was clearly eliminated when Anelli clari- fied his original statement to specify that he was not to speak to the Respondent's employees on company time interfering with their work. This specific reference to interference with work made it clear that this admonition did not apply to McGarry's soliciting employees on their nonwork- time. Accordingly, we shall dismiss the complaint allegation based on this incident. For similar reasons, we find that Anelli's two statements to McGarry about soliciting on compa- ny time were not unlawful. In this regard, our dis- senting colleague's reliance on Florida Steel Corp., 215 NLRB 97 (1974), is readily distinguishable. In that case it was held that rules against solicitation during "company time" are unduly ambiguous and can easily be interpreted as a restriction on solicita- Blue Flash Express, 109 NLRB 591 (1954), cited in Rossmore House, 269 NLRB at 1177, 1178 fn. 20. 10 Thus it is immaterial that McGarry engaged in soliciting on his own time. 339 tion during breaktime or other periods when em- ployees are not actively at work. Here, however, Anelli's initial statement to McGarry was not an- nounced as binding company rule because, when McGarry protested that he had a right to speak to his fellow employees, Anelli agreed to check on the validity of the admonition and get back to him. When Anelli did get back to McGarry 2 days later, he clarified his original admonition with the qualifi- cation that it applied to solicitation on company time that interfered with other employees' work. Thus, the original admonition was effectively sus- pended while Anelli checked on company policy, and the second admonition was properly qualified to make clear that McGarry was not barred from soliciting employees on their nonworktime. Ac- cordingly, we shall dismiss the complaint allegation based on this incident. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Consolidat- ed Edison Co. of New York, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER DENNIS, dissenting in part. For the reasons set forth below, I would reverse the judge and find that the Respondent violated Section 8(a)(1) by unlawfully interrogating Charg- ing Party Michael McGarry and by telling him not to solicit on "company time." On two occasions in March while McGarry was engaged in soliciting on his own time, Supervisor Mechmann approached him and asked what he was doing. On one of the occasions, Mechmann added that his "boss wanted to know." About 15 March, Supervisor Anelli observed McGarry soliciting Sylvestry, an on-duty guard. While Sylvestry was still present, Anelli told McGarry that he was not to solicit on "company time." Two days later Anelli told McGarry he was not to speak to em- ployees on company time interfering with their work. There is neither factual nor legal support for the majority's finding that McGarry's solicitation ac- tivities should be denied the Act's protection be- cause "many of the Respondent's employees . . . were on their worktime when McGarry solicited them." McGarry's solicitations occurred, as the judge found, at a time and place designed so as "no[t] to interfere with employees during their working time." Most of the Respondent's employ- ees begin work at 7 or 7:30 a.m. During the period in question, McGarry solicited from 6:45 to 7:55 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a.m. in the hallway employees used to enter and exit the building and near the entrance to the locker room. As the judge found, the one occasion when McGarry solicited a working employee is that mentioned above involving Sylvestry. To cor- rect the situation, McGarry subsequently verified with employees that they were on their own time before soliciting. On these facts it is clear that, with the exception of the Sylvestry incident, McGarry while on his own time solicited employees who were also on their own time.' Furthermore, the Board has long held that absent a valid rule pro- scribing union-related solicitation on working time, employees are free to engage in solicitation, even on working time, so long as there is no interference with production. Miller's Discount Dept. Stores, 198 NLRB 281 (1972). Here, we have adopted the judge's finding that the Respondent's written no-so- licitation rules are unlawful, and there is no evi- dence that McGarry's solicitation activities inter- fered with production. Accordingly, I find McGarry's solicitation activities protected. Concerning the incidents of alleged interroga- tion, I find McGarry's status as an active union dis- sident does not mean that he "may be subjected to coercive employer conduct." Diversified Products, 272 NLRB 1070 (1984) (Member Dennis, dissenting in part). See generally my dissenting opinion in Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Mechmann twice questioned McGarry concerning his protected solicitation activities. On the second occasion Mechmann made it clear that a higher management official had requested the information. The interrogation occurred in the context of sever- al other unfair labor practices involving solicitation activities and employee McGarry. Accordingly, I would find that under Rossmore House, 269 NLRB 1176 (1984), the totality of circumstances dictate a finding that the interrogations violated Section 8(a)(1). I also find that the Respondent violated Section 8(a)(1) when Supervisor Anelli told McGarry not to solicit on "company time." Such a statement is ambiguous and can easily be interpreted as a re- striction on solicitation during breaktime or other periods when employees are not actively at work. Florida Steel Corp., 215 NLRB 97, 98-99 (1974). Anelli's statement 2 days later that McGarry should not speak to employees on company time interfering with their work is no less ambiguous. i The majority's statement that the judge found employees were on their worktime when McGarry solicited them is apparently based on the judge's finding that while McGarry was not on worktime when Mech- mann questioned him, "many of the Respondent 's employees ... began work at 7 .30 or earlier." The judge's finding substantiates nothing more than McGarry's soliciting coincided with the hours some employees were on worktime. Further, to the extent that any clarification can be found in Anelli's second directive, it does not remedy Anelli's earlier, independent violation of Section 8(a)(1). Polly Chill, Esq., and Stephen A. Appell Esq., for the Acting General Counsel. Francis B. Conrad, Esq., and David J. Reilly, Esq., for the Respondent. Daniel E. Clifton, Esq. (Clifton & Schwartz), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in New York, New York, on October 1, 2, and 3, 1984. The amended complaint (which was subsequently amended) issued on August 14, 1984,1 based on an unfair labor practice charge and an amended charge filed on April 18 and June 11 by Mi- chael McGarry. The amended complaint alleges that the maintenance and enforcement of a provision in the col- lective-bargaining agreement between Consoldiated Edison Co. of New York, Inc. (Respondent) and Utility Workers Union of America, Local 1-2, AFL-CIO (the Union), 2 regarding restrictions on the use of bulletin boards and distribution of literature in Respondent's fa- cilities, violates Section 8 (a)(1) of the Act. The amended complaint also alleges that Respondent violated Section 8(a)(1) of the Act by interrogating McGarry regarding his soliciting fellow employees for their signatures to a petition involving intraunion matters, warning McGarry that these activities had to cease, and threatening him with reprisals if they did not cease. It is also alleged that Respondent created an impression among its employees that their activities on behalf of the Union were under surveillance and did, in fact, keep the employees activi- ties under surveillance . Finally, the amended complaint alleges that Respondent violated Section 8(axl) and (3) of the Act by reassigning McGarry to a different job lo- cation and by changing his hours of work. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with an office and place of business at 210 Westchester Avenue, White Plains, New York, other facilities, including one to be re- ferred to herein as the Eastview facility or Eastview, lo- cated in the County of Westchester, State of New York, and a trailer on a jobsite in Ossining, New York (Ossin- ing), is a public utility providing electricity. Annually, i Unless indicated otherwise all dates referred to herein are for the year 1984. ' In about April 1984 the Union's name was changed to Utility Work- ers Union of America, Local 1-2, AFL-CIO. CONSOLIDATED EDISON CO Respondent receives revenues in excess of $250,000, and purchases goods and materials valued in excess of $50,000 directly from firms outside the State of New York. Respondent admits , and I find, that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE FACTS A. The Distributions The Union has been the collective-bargaining repre- sentative for certain of Respondent's employees for almost 40 years; the most recent collective-bargaining agreement between the parties is effective from August 19, 1983, through June 17, 1986. This collective-bargain- ing agreement contains the following provision: 35. Use of bulletin boards: For the purpose of giving notice to its members as to meetings and making an- nouncements to its members, the Union shall have the right to make reasonable use of the regular bul- letin boards of the Company, and to have such no- tices and announcements transmitted and posted through the interoffice communicating system of the Company; provided that such notices and an- nouncements shall be restricted to: (a) Notices of meetings of the Union; (b) Notices of its elections; (c) Notices of its appointments to office and the results of its elections; and (d) Notices of its social, educational or recre- ational affairs; and provided further that such notices and an- nouncements shall contain nothing political or controversial or reflecting upon the Company, any of its employees, or any labor organization among its employees; and the Company may refuse to transmit, post, or permit the posting of, notices, announcements or other material which would violate any of the provisions of this Para- graph. 36. Other distribution or posting: There shall be no other general distribution or posting, by officers, agents, stewards or members of the Union, of pam- phlets, printed or mimeographed or typewritten matters, or other circular or notices, on property or time of the Company, except as provided in Para- graph 35 hereof. McGarry has been employed by Respondent for 38 years. Beginning in 1981 he was assigned to Respond- ent's contract administration and inspection department of its Westchester Division, initially as an inspector. Ap- proximately a year or two later, he was promoted to a construction representative (CR). There are nine non- 341 management employees in this department, including one, Charles Parsons, who still had the classification of inspector. The first-line supervisor over these construc- tion representatives is Frank McQuain; next is Jack Ahearn; above him is John Mechmann, superintendent, contract inspector, Westchester Division; and above him is Paul Angelides, division manager, contract administra- tion and inspection, Westchester Division. The CR's responsibilities are principally to see that Respondent gets its money's worth on work that outside contractors perform for Respondent, and to inspect work that these contractors perform for others (governments or private individuals) to be certain that Respondent's fa- cilities are not adversely affected or interfered with (in- terference work). For example, as will be discussed more fully infra, beginning March 26 McGarry was reassigned to Ossining when there were two worksites in close proximity to one another: South Highland Avenue (Route 9) was a major North-South thoroughfare east of the Hudson River. The New York State Department of Transportation had contracted with Briar Construction Corporation (Briar) to widen and upgrade the road. The Spring Street job, located less than a mile away, was an attempt by the Village of Ossining to restore the village to resemble a period in the late 1800s; this involved, inter alia, reconstruction of this major road through the vil- lage. These jobs (as well as others), of necessity, come in contact with Respondent's electric and gas facilities, which are located under roadways and walkways. The CR is empowered (within limits) to negotiate with the contractor performing the work to relocate Respondent's gas and electric facilities; as this contractor is already on the premises with his men and machinery, it is generally cheaper to use him to perform this work. McGarry is not yet empowered to negotiate contract prices with the contractors. More importantly, once work had begun, the CR must observe that the contractor's work for the governmental agency does not have any adverse affect on Respondent's underground facilities, and that the con- tractor is properly performing its work for Respondent. A correlative duty is the preparation of required paper work to ensure that the contractors are paid by Re- spondent for their work performed for Respondent. In 1980 McGarry ran against the incumbent slate for the business agent position in the Union and lost. In 1981 he and others formed a dissident group within the Union called "Fight Back"; the group's position is that the union leadership is not tough enough in its dealings with Respondent. Its supporters regularly distribute Fight Back leaflets at Respondent's facilities; McGarry is one of those who writes for and distributes these leaflets out- side Respondent's facilities in Westchester; the two loca- tions where McGarry distributed these leaflets on behalf of Fight Back were at Respondent's Westchester head- quarters at 210 Westchester Avenue in White Plains, New York (only tangentially involved herein), and at Eastview. In 1983, McGarry ran for assistant business manager on the Fight Back slate and lost. Approximately 500 employees appear at Eastview on a daily basis; 80 of these are considered supervision; the re- mainder are members of the Union. Out of all these em- 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, approximately 275 report to the building and regularly leave the building as part of their jobs. Job classifications of employees at Eastview include clerical employees, meter readers, installation employees, techni- cal employees, linemen, emergency employees, CR's, and others. Morning starting times for these employees are principally 7 and 7:30; some commence work at 8 a.m., while a few employees begin at 6 and 6:30 a.m. According to the General Counsel 's case, the difficul- ties to be discussed herein were caused by McGarry's so- licitations of fellow employees in the hallways at East- view. The genesis of this was a union meeting held on February 27; Fight Back alleged that a vote at that meet- ing was taken by a show of hands when it should have been by a secret ballot. Beginning a day or two later, McGarry solicited his fellow employees , who were members of the Union, to sign two documents, a petition and an affidavit. The petition demanded that the vote on the bylaw amendment at the Union's April meeting be by secret ballot conducted by a neutral party, and the af- fidavit, which was to be filed in a pending court case brought by Fight Back, states that the individual signing the affidavit was present at the Union's February meet- ing and observed that a majority of the members present indicated that they were in favor of a secret ballot vote on the proposed bylaw amendment . Angelides and John Anelli, Respondent's district manager at Eastview (he is in charge of the facilities ' housekeeping operation) testi- fied that, at the time in question, they were aware that McGarry was an active member of Fight Back . Eastview has principal hallways: one which was referrred to as the North-South hallway and the other referred to as the East-West hallway on the building diagram received into evidence. The latter has entrances or exits at each end, the westerly one being the entrance the employees were instructed to use normally; the employees' locker room is just inside this entrance to the facility while offices are adjacent to the easterly entrance . The North-South hall- way runs from the southerly point which is an entrance/exit adjacent to the East-West hallway , north- erly to the cafeteria and storeroom at the northerly end. McGarry's solicitation inside Eastview took place at two locations in the East-West hallway, initially just inside the principal westerly entrance (across from the entrance to the locker room), and later, when he saw that employ- ees were walking through the North-South hallways, he began soliciting in that hallway where the two corridors meet, near the southerly entrance/exit, only a short dis- tance from his other solicitation location . He commenced soliciting for signatures on the petition and affidavit about March 1; from that date until March 23 he solicit- ed fellow employees from 6:45 a.m. until approximately 7:55 a.m.; his starting time at Eastview was 8 a.m. From March 26 until about April 6 he solicited employees from 6:45 a.m. until approximately 7:30; at that time he left Eastview in order to give himself enough time to drive to Ossining. After April 9, when his reporting time at Ossining was changed to 7 a.m., he did not solicit be- cause he would have had to leave Eastview at 6:30 a.m. and there were few employees to solicit prior to that time. When employees entered the building he explained the petition and affidavit to them and asked for their sig- natures. He was the only Fight Back representative solic- iting signatures at Eastview. McGarry testified that on March 1 , at 7:30, while he was talking to two fellow employees near the westerly entrance/exit at Eastview, Mechmann came through the door and said, "Mike, what are you doing here, I see you here on a lot of mornings." McGarry jokingly said that he was attempting to get arrested for soliciting. Mechmann turned and walked away . Mechmann testified that just prior to speaking to McGarry, he had received a telephone call from Angelides who told him that he had heard that McGarry was conducting political activi- ties at Eastview. Mechmann responded that he knew that McGarry had previously recruited employees to take a bus trip to a union meeting but he was not aware of whether McGarry was soliciting employees at that time, and he would ask him . That morning, about 7:30, Mech- mann approached McGarry (at a time when no other employees were with him) and told him that Angelides wanted to know what he was doing and he volunteered to ask him. McGarry told him that he was acting on behalf of Fight Back to get affidavits signed regarding an amendment to the Union's bylaws. Mechmann said that it sounded political to him and McGarry agreed. Angelides testified that about this time he received a telephone call from Ed Quinn, personnel manager of Re- spondent's Westchester Division, who said that Anelli had called him to say that McGarry was being disruptive at Eastview by soliciting employees on "company time"; Quinn also told Angelides, "[Y]ou know, there's a con- tract provision which prohibits doing that and interfering with the employees who are working." Angelides said that he would investigate it: he called Mechmann, told him of his call from Quinn, and asked what McGarry was doing. Mechmann said that he would investigate it and call back. A few hours later Mechmann called him and told him that McGarry was in the hallway "in- volved is some kind of political activity."s Angelides told him that pursuant to the contract he was not al- lowed to do that on Respondent's property, "and cer- tainly he's not supposed to be interfering with people on company time." He told Mechmann to tell McGarry "that if that's what he is doing, he shouldn't be doing that." McGarry testified that 4 or 5 days later, about 7:30, while he was talking to an employee in the hallway, Mechmann approached them and asked McGarry what he was doing; McGarry answered that he was engaged in union activities. Mechmann said that his boss wanted to know what McGarry was doing and he had to give him an answer, and he would tell him that it was poli- tics. McGarry told him that it was not politics, it was union activities . Mechmann testified that after the earlier conversation referred to, supra, he did not discuss McGarry's solicitations with him again until mid-April, to be discussed infra. McGarry testified that shortly after March 5, about 9:30 a.m., Anelli called him into an office area, and told ® Angelides testified that it was not until "much later" that he learned what McGarry was doing. CONSOLIDATED EDISON CO. him what he was doing in the morning could possibly get him in trouble. McGarry asked how that could be, as he and most of the employees he was talking to were on their own time. Anelli said that he should be careful be- cause he might get in trouble. McGarry asked Anelli to ask Quinn if he was allowed to talk to his fellow employ- ees when both were on their own time; Anelli said that he would check. A few days later Anelli told McGarry: "I've checked and you better make sure that the people you're talking to are on their own time." McGarry told him that was one of the first things he asked employees when he spoke to them in the hallway. McGarry testi- fied that especially after that conversation, if he had any doubts about the starting time of employees he was speaking to, he asked them if they were on their own time. Only after they said that they were did he solicit them to sign the petition and affidavit. However, as he did not know most of the employees he could not be completely sure whether they were on working or non- working time. Anelli testified that he usually reports for work about 6:50; his first duty is to walk through the facility to see that there are no problems. During March, he observed McGarry soliciting signatures and handing out literature to employees (once, as many as five or six at a one time) for signature at the intersection of the North-South and East-West hallways about 7:15 a.m. On one morning in March, about 7:15 a.m., he observed McGarry speaking to Ralph Sylvestry; Sylvestry works for Anelli and begins work at 7 a.m.4 Upon seeing this, Anelli ap- proached McGarry (who was at the same intersection at the time) while Sylvestry was still present and told him that what he was doing was not right and he should stop.5 McGarry said that he had a constitutional right to do what he was doing. Anelli said that McGarry did have his rights, but Respondent also had a right that its employees on company time should not be interfered with. McGarry repeated his constitutional right and Anelli said that he would check on it and get back to him. Two days later, after talking to Quinn, he told McGarry that he had received word that he was not to speak to Respondent's employees on company time inter- fering with their work. On rebuttal, McGarry testified that after hearing Anelli testify he recalled speaking to a man who fit the description testified to by Anelli, but he did not know whether it was Sylvestry or whether that employee was on company time. In addition, he testified that in his conversation with Anelli he never used the word "constitutional" right. McGarry testified that on April 13 Mechmann called him and told him that his union activities at Eastview were to cease and any further union activity he engaged in would have to be done on the roadway in front of Eastview. McGarry asked who told him to tell him that, and Mechmann said that it was an "upper management decision," which he would be receiving notification of. Not having received any further word on the subject, * It was the presence of Sylvestry, a guard who was supposed to be on his rounds at the time, that made him stop and talk to McGarry. 6 He testified that prior to this confrontation he did not know what McGarry was doing speaking to the employees although he knew that McGarry was a union dissident 343 McGarry called Mechmann on April 27 and told him that he was still waiting for notification of what he had told him. Mechmann said that he never said that he would receive notification in writing and then repeated what he had told him in the April 13 conversation. Mechmann testified that in mid-April Angelides called him and told him that he understood that McGarry was still conducting his political activities at Eastview. Mech- mann told him that he understood that he was, and that he would call McGarry and tell him that the activities must cease unless they were conducted off the premises, which he did; McGarry did not comment, simply ac- knowledging what Mechmann said. Angelides testified that he told Mechmann "as long as he's not interfering with people on company property, or people who are working on company time, or if he is on his own time, it doesn't bother me." Shortly thereafter, he testified that the "ground rules" he gave Mechmann were that "if he's operating . . . on company time doing that, which he's supposed to be working, or if he's interfering with people who are on company time; if he's on the property doing what he's doing, he should stop. Otherwise it doesn't bother me." Evidence was adduced to establish solicitations at Eastview by people other than McGarry. On three occa- sions in May or June 1983, prior to a union election, Ex- ecutive Board Member Kenneth Gillio was handing out anti-Fight Back leaflets in the North-South lobby outside of the cafeteria. The leaflet is entitled "A Handfull of Misfits" and alleges that Fight Back was supported by radical groups. Although McGarry never saw any super- visor observe Gillio doing this, he is "sure" that they ob- served it because Gillio was at the entrance to the cafete- ria, and the supervisors use the cafeteria, although some of the people Gillio gave this literature to were not going into the cafeteria. Anelli testified that sometime late in 1983 or early 1984 he observed Gillio distributing union pamphlets outside the cafeteria; he told Gillio that he should stop doing it because what he was doing was not right. Gillio picked up the pamphlets and left with- out commenting. That was the only occasion that he ob- served Gillio distributing literature on Respondent's premises. For approximately 35 years, Respondent and the Union have maintained a joint charity drive. Prior to 1984 certain shop stewards, including Denis Moran (steward for the CR's involved herein), were given a week off each year to make the solicitation. The stew- ards gave the pledge cards to the union people and a management representative did the same for the non- union employees; whatever the employees indicated on the pledge cards was deducted from their pay. Moran did this solicitation in March between 8 and 9 a.m., at a time that he, and the employees he solicited, were on working time. Anelli was solicited in this regard by a nonunion employee. In addition there is a monthly raffle for the City of Ossining Fire Department; an employee in a nearby department had the tickets on his desk. Em- ployees fill out one or more tickets, tear them off, and leave the money for the tickets. The last time Moran purchased such a ticket was in August, on working time. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, there are periodic solicitations for Girl Scout and Boy Scout cookies and other charitable organiza- tions; Anelli had been asked to contribute to these orga- nizations and refused, but did not admonish the solicitors that they should not solicit on working time. B. The Transfer On March 22 Mechmann called McGarry into his office and informed him that beginning Monday, March 26, he would be working at Ossining. Mechmann testi- fied that he informed McGarry that the reason was that he would be replacing Parsons, who was not qualified to do the job due to the present activity at Ossining and the anticipated increased activity there. He testified that he believes that in this conversation he told McGarry that his hours at Ossining would be 7 a.m. to 3:30 p.m., the same hours that Parsons had worked and that Nichols was working. McGarry testified that when Mechmann told him of being reassigned to Ossining he told him that he did not want him coming in to Eastview, and that when McGarry asked him if he could continue working from 8 a.m. to 4:30, Mechmann said that he could. McGarry also told Mechmann that he would speak to his steward in an attempt to arrange a switch with an- other CR who would prefer working at Ossining. On the following morning, McGarry called Moran and informed him that he had been reassigned to Ossining. He told him that he would prefer not working there and that he would like to swap the assignment with someone who would be willing to do so; he had already spoken to Parsons and he was willing to stay. He also told Moran that if he had to go to Ossining, he would prefer work- ing 8 to 4:30. Moran told him that he would speak to management about both requests . That same day, Moran met Mechmann and asked him if Parsons could remain at Ossining rather than transferring McGarry to the job. Mechmann told him that the job called for a CR and they were reassigning Parsons, an inspector, back to a lesser job. Moran then asked if it would be possible for McGarry to work there from 8 a.m. to 4:30 p.m.; Moran testified that Mechmann said that he had no problem with that. Mechmann testified that when Moran asked him if he would consider allowing McGarry to work 8 to 4:30 at Ossining he said that although he "could live with the situation, personally," he would need Angelides' approval. He asked Angelides and he said that as the contractors on the job work from 7 a.m. to 3:30 p.m., they could not allow McGarry to work 8 a.m. to 4:30 p.m.e As stated supra, from March 26 through April 6 McGarry solicited employees at Eastview from 6:45 to 7:30 a.m., at which time he left for Ossining, arriving prior to 8 a.m. On April 4 Moran called him and told him that Angelides learned that he was at Ossining after 3:30 p.m., when the contractors left, and wanted him working the same hours as the contractors, 7 to 3:30 be- ginning the following Monday, April 9. Angelides testi- fied that shortly after McGarry was reassigned to Ossin- ing, he received calls from Mechmann and Moran on the Considering Mechmann's testimony that Angehdes said that McGarry would have to work 7 to 3 :30, it is not clear why McGarry worked from 8 to 4 .30 for the next 2 weeks same day asking if McGarry could continue working the 8 to 4:30 shift. He told both that because the contractors worked 7 to 3:30, that is when McGarry had to work. Later that day, McGarry met McQuain at Ossining, and McQuain said: "Apparently, someone wants you to be working here the same hours as Jack Nichols"; "McGarry said that as a result he would no longer be able to get to Eastview, and McQuain said: "[T]hat's tough." McQuain told him that they wanted him at Os- sining at 7, because that was when the contractors ar- rived at the site.7 McGarry worked at Ossining from April 9 through September 7 from 7 to 3:30; on Septem- ber 7 he was notified that he would be reporting to work at Eastview beginning on September 10. From the time he became a CR until March 26, McGarry had always been assigned to report to East- view in the morning, although he had previously worked at Ossining. When McGarry commenced work at Ossining, Nich- ols had been there for in excess of a year; however, he spent a vast majority of his time in Respondent's trailer performing required paperwork. McGarry's job at Ossin- ing was to observe the progress of the contractor's work for Respondent, and, when there was installation of elec- trical duct work or gas pipe, he had to measure and report the length of pipe and its depth and the width of the trench. He also observed as sidewalks were being in- stalled and curbstones were being set. McGarry testified that Moran informed him that he was told that the reason he was transferred to Ossining was that he had more experience with interference work than Nichols, and yet, while at Ossining, he only performed interfer- ence work on a few occasions. When he told Nichols that he was performing some interference work, Nichols told him, "We don't do any interference work, we're only here on a construction end," and that if they had interference work they should contact Joe Greco, a CR who specialized in interference work and had performed some at Ossining before March 26. Angelides testified that Respondent has assigned Nich- ols and Parsons to Ossining ; Nichols had been a CR for in excess of 20 years and had previously worked as a field and record clerk. Parsons had been an inspector for a year and had previously been employed by Respondent as an auto mechanic. According to Angelides' testimony: Mr. Parsons, I would refer to as a novice . He came to us and had not been trained in the job of an in- spector; had received no formal training. So we had assigned him to perform tasks that were not com- plex: that could be done without the formal train- ing. Angelides testified that the reassignment was made at Ossining principally for two reasons . Respondent had re- ceived a letter from Briar advising that it had not been paid in a timely manner for work it had performed for McGarry testified that if some work had to be completed, the con- tractors remained after the usual 3:30 quitting time In June, July, August, and September they worked a lot of overtime hours, but not on Respondent's work CONSOLIDATED EDISON CO 345 Respondent, and unless it was soon paid it would claim additional costs against Respondent; at the time of the in- stant hearing Respondent could not locate this letter. He testified that in addition, "during the same period," a newspaper articles blamed Respondent for the delay in the project. Angelides then called Mechmann and told him that they had to closely watch the Ossining projects because of bad press, and because of their past unfavor- able experiences with Briar it was necessary to be extra careful. He asked Mechmann who was assigned to the projects and, when Mechmann told him that Nichols and Parsons were there, Angelides said that Parsons could not remain on the job because he was not qualified. Mechmann said that he would have to replace Parsons, and Angelides told him to assign someone who was qualified and trained. Shortly thereafter, Mechmann called him and told him that all the CRs were busy except for McGarry, whom he could asssign to the job. Angelides told him that as McGarry was trained he could be assigned to the job, and he was. Mechmann testified that McQuain assigned Parsons to Ossining about February 1; he did not learn of the as- signment until several weeks later. When Angelides called him in late March, he had to decide whom to re- assign to Ossining. He chose McGarry because he was the only CR available. Mechmann has nine nonmanager- ial employees working under him: McGarry, Green, Greco, Washienko, Griffin, Reynold, Caron, and Nich- ols, all CRs, and Parsons, an inspector. Green, Greco, and Washienko have between 15 and 30 years' experi- ence as CRs and are assigned to specific areas within the division to perform public improvement/interference work. They supervise municipal contractors in the instal- lation, alteration, or maintenance of municipal facilities. Because they are assigned to a particular area, they are familiar with the municipal authorities in their area. They are the only CRs authorized to negotiate prices with contractors. Because of all these responsibilities, they could not be reassigned. Reynolds was assigned to sever- al development projects and a major construction project just beginning in White Plains. Griffin was assigned to several active projects in Rye and Port Chester. Caron had been "virtually a resident inspector" on a major con- struction project in Buchanan since December 1981. Be- cause of these pending assignments none of them could be reassigned. The only remaining CR (other than Nich- ols, who was at Ossining) was McGarry. Mechmann tes- tified that McGarry was available because he had princi- pally been employed on the Brentwood Brook Project in Harrison, which by late March "was shut down, as far as we were concerned." McGarry testified that beginning in August 1983 he commenced working on the Brent- wood Brook Project; by the end of February it was in the process of shutting down or it had shut down. They hoped to resume the project in May, but they never did, partially due to a shortage of funds. Between the end of 8 This newspaper article appeared in a Westchester newspaper on Jan- uary 19 The article does directly blame Respondent for the traffic tieups Angelides testified he received the Briar letter prior to the newspaper ar- ticle, but he also testified that he received this letter in March He later testified that he received the Briar letter a "couple of months" after the newspaper article February and March 26, he worked on three other projects in the area. Mechmann and Angelides testified that it is not unusu- al for more than one CR to be assigned to a large project, and they named a number of such multiple CR projects. Also, in answer to a question from me whether, on large projects with more than one CR, one of the CRs reported to Eastview rather than directly to the project, Angelides testified that on some of these projects both reported directly, while on others one first reported to Eastview-"It depended on . . . the timing and how critical the project stage was." He testified that Ossining was at a critical stage for Respondent; McGarry testified that on March 26 Ossining was wind- ing down. C. The Grievance On April 10, McGarry filed a grievance alleging that Respondent violated its contract with the Union by reas- signing him to Ossining and changing his work hours and by denying him certain payments for driving to job assignments. Moran gave the grievance to Mechmann that same day. In the middle or at the end of April, McGarry, Moran, Jack Murphy, the Union's business agent, and another union shop steward met with Ange- lides and Mechmann. At this meeting Respondent took the position that McGarry was not entitled to any mile- age and that his reassignment was not a form of harass- ment. At the conclusion of this meeting, Murphy said that he was not satisfied with their answers and would meet with Gus Papakrakas, Respondent's vice president. Murphy and Papakrakas did meet and Papakrakas sent a letter to the Union in May stating that McGarry was en- titled to some of the mileage he was claiming, but denied the remainder of his grievance. Moran testified that he has no direct knowledge of whether the grievance went any further than that. McGarry was never told by a rep- resentative of the Union that the grievance was going any further than that, nor did he hear from anyone from the Union about it. Analysis Respondent in its amended answer alleged as an af- firmative defense "that the matters complained of herein are being processed through the grievance procedure prescribed by the collective bargaining agreement" be- tween Respondent and the Union, and therefore the Board should defer thereto. Respondent makes no men- tion of this defense in its brief. In United Technologies Corp., 268 NLRB 557 (1984), the Board overruled Gener- al American Transportation Corp., 228 NLRB 808 (1977), and returned to the doctrine of deferral set forth in Col- lyer Insulated Wire, 192 NLRB 837 (1971), thereby creat- ing an expanded view of what matters should be de- ferred. There are two factors herein that take this matter out of that realm. One is that Respondent has not indi- cated a willingness to utilize arbitration to resolve the dispute. The other (and principal) reason is that because McGarry was an active dissident in the Union, there is a possibility that his interests might not be adequately rep- resented by the incumbents during the arbitral process. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In United Technologies, the Board cited with approval the dissent in General American Transportation, which stated that the Board "has refused to defer where the interests of the union which might be expected to represent the employee filing the unfair labor practice charge are ad- verse to those of the employee." Although it is certainly not clear that the Union would inadequately represent McGarry at an arbitration, based on his dissident activi- ties and the headline in a union pamphlet referring to the Fight Back members as misfits, there is sufficient doubt so that he should not be relegated "to an arbitral process authored, administered, and invoked entirely by parties hostile to [his] interests." Kansas Meat Packers, 198 NLRB 543, 544 (1972). I therefore would not defer. As regards the allegation concerning the illegality of paragraphs 35 and 36 of the collective-bargaining agree- ment, a basic disagreement appears in the parties ' briefs; the General Counsel alleges that these provisions are "overbroad and therefore on its face violates Section 8(a)(1) of the Act." Respondent's brief states, "There is no allegation in the amended complaint that Paragraphs 35 and 36 are unlawful in and of themselves." I agree with the General Counsel because the amended com- plaint alleges that Respondent violated Section 8 (a)(1) of the Act when it "maintained in effect, and enforced" these provisions. Examining paragraph 35 first, the Gen- eral Counsel emphasizes two portions of the paragraph which establish that it violates Section 8(a)(1) of the Act: the ambiguity of the word "political" and the prohibition of posting anything "political or controversial or reflect- ing upon the Company . . . or any labor organization among its employees." In Container Corp. of America, 244 NLRB 318 fn. 2 (1979), the Board stated: It is well established that there is no statutory right of employees or a union to use an employer's bulle- tin board. However, it is also well established that when an employer permits, by formal rule or other- wise, employees and a union to post personal and official union notices on its bulletin boards, the em- ployees' and union's right to use the bulletin board receives the protection of the Act to the extent that the employer may not remove notices, or discrimi- nate against an employee who posts notices, which meet the employer's rule or standard but which the employer finds distasteful. No evidence was tendered to establish the past prac- tice in the use of the bulletin boards. However, the Gen- eral Counsel adduced testimony from Mechmann that he considered running for office, supporting an opposing group, or petitioning fellow employees a "political" act. This testimony supports the theory that one man's politi- cal actions are another man's protected concerted activi- ties. In addition, the language of the proviso to para- graph 35 would appear to bar the posting of any Fight Back literature while allowing the specified union litera- ture. For this reason I find that the language of para- graph 35 is a per se violation of Section 8(a)(1) of the Act. The portion of paragraph 36 principally incurring the wrath of the General Counsel is the words "on property or time of the Company." Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), stated simply: "Working time is for work." This did not turn out to be as simple as it first sounded. Prior to Essex International, 211 NLRB 749 (1974), the Board did not distinguish between "working time" and "working hours" in rules restricting solicitation. In that case the Board ruled that the former was presumptively valid and the latter presumptively in- valid. In T.R.W. Bearings, 257 NLRB 442 (1981), the Board found both were presumptively invalid. In Our Way, Inc., 268 NLRB 394 (1983), the Board overruled T.R. W. and returned to the standard set forth in Essex. Therefore, the determination in the instant matter is de- pendent on whether the phrase "time of the Company" is analogous to "working time," and therefore presump- tively valid. The Board, in Essex, in finding the term "working time" presumptively valid, reasoned that the term "connotes the period of time that is spent in the performance of actual job duties, which would not in- clude time alloted for lunch and break periods." Shortly after Essex, the Board, in Florida Steel Corp., 215 NLRB 97, 98 (1974), found a rule containing a prohibition against soliciting on "company time " presumptively in- valid. We find the term "company time," like "working hours," is unduly ambiguous and tends to connote all paid time from the beginning to the end of the work shift, and can easily be interpreted as a restric- tion on solicitation during breaktime or other peri- ods when employees are compensated although not actively at work. I therefore fmd that the wording of paragraph 36 is a per se violation of Section 8(a)(1) of the Act. The remaining portion of this allegation is that the en- forcement of paragraph 36 violated Section 8(a)(1) of the Act. The evidence establishes a number of charitable so- licitations occurred at Eastview during working hours, and one incident where a union representative solicitied employees at Eastview on union matters. These solicita- tions generally occurred during working time. On the other hand, McGarry's solicitations occurred at a time and place designed so as not to interfere with employees during their working time; although he may have erred on one occasion with Sylvestry, he attempted to correct that situation subsequent to that incident by asking em- ployees if they were on worktime. By prohibiting these solicitations, while allowing the others , Respondent dis- parately enforced its no-solicitation rule in violation of Section 8(a)(1) of the Act. Timken Co., 236 NLRB 757 (1978). In this regard, I find that Mechmann's directive to McGarry on April 13 that his union activities at East- view were to cease and any further union activity would have to be done in the roadway violates Section 8(a)(1) of the Act. Respondent adduced evidence of only one employee who was solicited by McGarry during his working time, and that occurred in early March; the evi- dence establishes that for the following 5 weeks he solic- ited employees during nonworking time, without inter- CONSOLIDATED EDISON CO. fering with production. Respondent's action on April 13 therefore constituted an improper restriction on engaging in protected concerted activities in violation of Section 8(a)(1) of the Act. The next item for consideration is the General Coun- sel's allegation that Mechmann's questioning of McGarry about March 1 and 5 constituted interrogation in viola- tion of Section 8(a)(1) of the Act. The Board, in Ross- more House, 269 NLRB 1176 (1984), stated that PPG In- dustries, 251 NLRB 1146 (1980), established that ques- tioning the union sympathies of an open and active union supporter, even in the absence of threats or promises, was inherently coercive. The Board, in Rossmore, over- ruled that holding stating that PPG "ignores the reality of the workplace." Under the rule established in Ross- more, the Board looks to the "totality of the circum- stances." See also Premier Rubber Co., 272 NLRB 466 (1984). In these circumstances, McGarry was a known participant in Fight Back who had on that day or the prior day commenced soliciting his fellow employees to sign the petition and affidavit. Although McGarry was not on worktime during these solicitations, many of Re- spondent's employees at Eastview began work at 7:30 and earlier. Mechmann's questions were therefore not completely unwarranted. Under the Rossmore criteria, I fmd that Mechmann's questions of McGarry did not vio- late Section 8(a)(1) of the Act. The General Counsel also alleges that Mechmann's questioning of McGarry about March 5 as to what he was doing and his statement that his boss wanted to know what he was doing constituted an impression of surveillance in violation of Section 8(a)(1) of the Act. I disagree. McGarry was a known Fight Back supporter soliciting employees in the hallway at Eastview. There was no impression of surveillance to create. Brigadier In- dustries Corp., 271 NLRB 656 (1984). The General Counsel also alleges that Anelli's state- ments to McGarry on March 14 constituted a warning and threat in violation of Section 8(a)(1) of the Act. I credit Anelli's testimony regarding Sylvestry which McGarry (whom I found to be a very credible witness) appears to support. As Respondent is entitled to have its employees working, rather than being solicited, during their worktime, Anelli's statements to McGarry were justified and not in violation of Section 8(a)(1) of the Act. Finally, the General Counsel alleges that McGarry's reassignment to Ossining and to the 7 to 3:30 shift vio- lates Section 8(a)(1) and (3) of the Act. In Wright Line, 251 NLRB 1083 (1980), the Board set forth the rule to be applied in determining whether certain actions are in violation of Section 8(a)(1) or (3) of the Act: "First we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's deci- sion. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." This burden was approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The General Counsel has satisfied her burden. Since he became a CR in about 1981 he had 347 always reported for work at Eastview. Since about a month prior to his reassignment he had been soliciting his fellow employees at Eastview to support Fight Back's position on certain issues. In addition (in what I find was the only evidence of animus, albeit insubstan- tial) on April 13 Respondent directed McGarry to engage in his solicitation in the roadway, rather than the hallway at Eastview, although other solicitations on the premises were countenanced by Respondent, and the evi- dence establishes that, at least, after the Sylvestry inci- dent, no employees were solicited by McGarry on their working time. I also find, however, that Respondent has sustained its burden. Other than the April 13 directive there is no evi- dence of Respondent's animus toward McGarry or Fight Back. McGarry's solicitations on behalf of Fight Back long precede mid-February; the undisputed testimony is that Respondent's agents were aware of these solicita- tions and McGarry's participation in Fight Back, yet there apparently was no previous discrimination directed at McGarry. In fact, since the organization of Fight Back and McGarry's participation in it, McGarry has been promoted to inspector and CR. The principal strength of the General Counsel's case and the corre- sponding weakness of Respondent's case is the timing of the transfer and change of hours. Angelides (whom I found was not a very credible witness) testified that the newspaper article and the Briar letter were the motivat- ing factor behind the changes; yet the newspaper article was dated January 19 and Angelides initially testified that the Briar letter (which he could not locate) was re- ceived prior to this article. Absent this contradiction (which may be explained by confusion) there is no sub- stantive evidence to explain why Respondent would choose to discriminate against McGarry at that time, as he had been engaging in his Fight Back activities since about 1980 without recrimination. In addition, Respond- ent's defense appears to be plausible. As Parsons was an inexperienced inspector he had to be replaced; the evi- dence establishes that in February McGarry's Brentwood Brook project had virtually shut down so that he was available whereas the other CRs were not available or were not as available. I therefore find that Respondent has satisfied its burden and that Respondent's transfer of McGarry did not violate Section 8(a)(1) and (3) of the Act. This allegation is therefore dismissed. Having found that the transfer did not violate the Act, I also find that the change in working hours also did not violate the Act. Although this change made it difficult, if not impossible, for McGarry to solicit the employees at Eastview prior to work, and Mechmann said that he could "live with" the 8 to 4:30 hours, as stated supra, there was little, if any, evidence of animus on the part of Respondent toward McGarry or Fight Back. In addition, Parsons had worked from 7 to 3:30 at Ossining, as did Nichols. The contractors also began work at 7 a.m., al- though they sometimes worked overtime after 3:30. It was not unreasonable for Respondent to want McGarry to work the same hours as the contractors, especially since Nichols spent substantially all of his time on paper- work in the trailer. I therefore find that Respondent did 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not violate Section 8(a)(1) and (3) of the Act when it re- assigned McGarry to the 7 a.m. to 3:30 p.m. shift. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The restrictions contained in paragraph 35 of the collective-bargaining agreement between Respondent and the Union, that notices or announcements posted on the bulletin board "shall contain nothing political or con- troversial or reflecting upon the Company , any of its em- ployees, or any labor organization among its employees" are overly restrictive and violate Section 8(a)(1) of the Act. 4. The restriction against distributions on "time of the Company" contained in paragraph 36 of the above-men- tioned collective-bargaining agreement is an invalid re- striction on employees' solicitation rights and therefore violates Section 8(a)(1) of the Act. 5. Respondent violated Section 8(a)(1) of the Act by disparately enforcing its rule against distributions against McGarry, while not enforcing it against other distribu- tions at Eastview. 6. Respondent violated Section 8(a)(1) of the Act by warning McGarry that he could no longer solicit em- ployees inside the Eastview premises. 7. Respondent did not further violate the Act as al- leged in the complaint. THE REMEDY Having found that the maintenance and enforcement of portions of paragraphs 35 and 36 violate Section 8(a)(1) of the Act, it will be recommended that Respond- ent be ordered to cease and desist from the maintenance or enforcement of these paragraphs of its collective-bar- gaining agreement with the Union. I shall also recom- mend that Respondent be ordered to cease and desist from warning its employees against engaging in proper solicitations at Eastview. As I have recommended that Respondent be ordered to cease and desist from main- taining or enforcing these provisions, no order is needed to remedy the disparate enforcement found. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Consolidated Edison Co. of New York, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining or enforcing the provisions contained in paragraphs 35 and 36 of its collective-bargaining 9 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses agreement with the Union, effective August 19, 1983, through June 17, 1986, or any similar rule preventing so- licitations by employees on company time. (b) Warning employees to stop engaging in solicitation of employees during their nonworking time at Eastview. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify the Union, in writing, that it will no longer enforce paragraphs 35 and 36 of its collective-bargaining agreement between it and the Union, effective August 19, 1983, through June 17, 1986. (b) Post at each of its offices and facilities including, but not limited to, Eastview copies of the attached notice marked "Appendix."" ° Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the amended complaint be dismissed insofar as it alleges violations of the Act not specifically found. 10 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT maintain or enforce paragraphs 35 or 36 of our collective-bargaining agreement with Utility Workers Union of America, Local 1-2, AFL-CIO, effec- tive August 19, 1983, through June 17, 1986, which the Board has found to be invalid, or any rule which prohib- its employees from soliciting during their nonworking time. WE WILL NOT threaten or issue warnings to our em- ployees for soliciting in violation or an unlawful no-solic- itation rule. CONSOLIDATED EDISON CO. 349 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. CONSOLIDATED EDISON CO. OF NEW YORK, INC.