Southwest Gas Corp.

SOUTHWEST GAS CORP. Southwest Gas Corporation and Construction, Build ing Materials and Miscellaneous Drivers Local ]Union No. 83, an affiliate of International ]Brotherhood of Teamsters , Chauffeurs, Ware- housemen' and Helpers of America. Case 28- CA-8446 31 March 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFr On 6 November 1986 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a brief and an an- swering brief. The General Counsel filed cross-ex- ceptions and a, brief and a brief in support of the judge's decision. 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 briefs and has decided to affirm the judge's rulings, findings,I and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Southwest Gas Corporation, Tucson, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative 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 reversing the findings. 2 We deny as unnecessary the General Counsel's request for a visita- torial provision. Hector O. Nava, Esq., for the General Counsel. Roy E. Potts, Esq (Overton, Lyman & Prince), of Los An- geles, California, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Phoenix, Arizona, on 9 and 10 Sep- tember 1986.1 The charge was filed on 5 May 1986 by Construction, Building Materials and :Miscellaneous Drivers Local Union No. 83, an affiliate of International 1 This manner of setting forth dates comports with the wishes of the Board. 283 NLRB No. 79 543 -Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union). The resulting com- plaint issued on 13 June,, was amended during the trial, and alleges that Southwest Gas Corporation (Respond- ent) violated Section 8(a)(1) of the National Labor Rela- tions Act (Act) about 1 May 1986 by "promnulgat[ing], maintain[ing] and enforc[ing] a rule prohibiting union so- licitation during working hours," and by "issu[ing] a verbal warning to its employee, Edwin S. Fine," pursu- ant to that rule and because of Fine's union activities. 2 I conclude below, after an examination of the relevant evidence and applicable legal principles, that Respondent violated the Act substantially as alleged. 1. JURISDICTION Respondent is a public utility engaged in the distribu- tion , and sale of natural gas. That it is an employer en- gaged in and affecting commerce within Section 2(2), (6), and (7) of the Act is undisputed. II. LABOR ORGANIZATION The Union is a labor organization within Section 2(5) of the Act. III. THE ALLEGED MISCONDUCT A. Evidence Fine is one of about 60 customer service technicians working out of Respondent's Tucson operations center. He has been with Respondent for about 8 years, the last 5 in his present position. In March and April 1986, Fine approached several labor organizations about seeking to represent the cus- tomer service technicians in Respondent's Apache Divi- sion.3 The Apache Division _ covers southern Arizona, and includes the Tucson facility and those in such other localities as Bisbee, Casa Grande, Douglas, and Globe. The Union was receptive to Fine's 'overtures, mounting an organizational drive in April with him as chairman of the organizing committee. The morning of 23 April, while walking from the parking lot to the service technicians' ready room at the ,Tucson operations center, Fine crossed paths with Ed Morgan, a service technician out of Globe. The two once had worked together and, in Fine's view, were friends. Morgan was attending a line locater school at the Tucson facility, and was on his way to the parking lot preliminary to going out for field instruction. Fine told him about the aborning organizational effort and asked for his telephone number, explaining that organiz- ers were needed in the "outlying areas." Globe is about 100 miles from Tucson. Morgan gave his number, then 2 Sec. 8(4)(1) prohibits an employer from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaran- teed in Section 7" of the Act. Sec. 7 guarantees employees "the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection ... " a The service technicians had been represented by Local 11116, Interna- tional Brotherhood of Electrical Workers, until that union was decerti- fied in 1982-a result Fine had worked to achieve. 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the two went their separate ways. The encounter lasted no more than a minute or two. A day or two later, according to Morgan, he men- tioned the encounter to his supervisor in Globe, Riley Doss. Doss told him, so Morgan recounted, that he "couldn't discuss it with [Morgan] at all," but that, if Morgan "wanted to make a memo as to what happened ... that was up to [him]." Morgan's purpose in talking to Doss, he testified, "was ..., more trying to find out what was going on than anything. . . . [A]il I did was simply make the statement that there was some talk about a ,union, and I wanted to know about what was going on." Morgan continued that he did not feel he had been "harassed" by Fine, and that he had no "intention at all" of complaining about Fine or causing him to receive a warning. Following his conversation with Doss, and after dis- cussing the matter with "the wife," Morgan supplied Doss with this memorandum: I was in Tucson, attending a school for line location at the Operation Center. On April 23, at approxi- mately 8:50 a.m., I was going to my vehicle when I was confronted by Ed Fine, a service tech. He ex- plained that he was currently involved with orga- nizing a union at Southwest Gas (The Teamsters) and that he would like my home phone number so that he and a union rep could contact me because it was necessary to get the support of the other dis- tricts. I gave him the office number and he said he need[ed] my home phone. About this time, Jeff Layton walked by and said he needed to see me and Ed Fine walked away saying he would see me later. I-have not seen or talked to Ed since. The document, undated, is in Morgan's writing and, he testified, was prepared at home. The Jeff Layton men- tioned in it is ' a Tucson customer service supervisor and Fine's immediate superior. Morgan's memo to the contrary, Fine testified that their meeting occurred several minutes before the 8 a.m. start of his workday and that Layton was nowhere to be seen. Two others, Mike McGuire, a service technician, and-Mark McLaughlin, a construction technician attend- ing class with Morgan, likewise testified that they saw Fine with Morgan before '8 a.m., and that they did not see Layton. Morgan testified consistently with his memo, and Layton's testimony concerning his presence and the timing of the incident mirrored Morgan's. Whatever Fine's status, Morgan technically was "on the clock" at the time of their encounter, his class having convened about 7 a.m. The record contains no evidence, however, that the encounter interfered even slightly with Morgan's school activities, or that it caused any other kind of work-related disruption. On 29' April, according to Blake Down, Apache Divi- sion vice president, he had a telephone conversation with T. N. (Burr) 'Brackeen, superintendent of customer serv- ice, in which. Mr. Brackeen relayed all the particulars of the inci- dent to me and said that they intended to have Mr. Layton_... administer a verbal warning [to_ Fine] because of -union activities on working time, and I concurred Brackeen particularized, per Down, that Morgan "had been approached by Mr. Fine, who had solicited matters pertaining to union organization"; and that Morgan, When he got back to Globe, indicated to his super- visors that this had happened to him and [he] was not particularly happy about it, and he was told, if you will put your complaint down in writing, which he did. Down testified that his conversation with Brackeen lasted "probably five minutes"; and that, before concur- ring in the warning, he took pains to determine when the incident occurred, "to be sure that it was during working time and not before work, during coffee break, lunch hour, and so forth." Brackeen "indicated ` there was no question about [the time] whatsoever," according to Down. Down testified that he is "involved pretty much in any disciplinary procedures." He enlarged: "[I]n most cases, it's more of an informational type thing, but I have the option to say, `Wait a minute, let's take a second look."' On 30 April, Layton recounted, Brackeen showed him Morgan's memo and directed him "to have a meeting with Mr. Fine and tell him that this is a verbal warning for soliciting the union during company working time." This, according to Layton, was his first "intimation" that Fine "had been complained about " Asked if he had per- ceived Fine to be doing anything improper when he came upon the underlying encounter, Layton testified: At that time, I could not perceive anything that was more than a greeting. That's not something that warrants a verbal warning at all, sir. It would be like saying hello to the employee as he went by. Next asked if he mentioned to Brackeen that he had been a bystander during a portion of the encounter, Layton first testified that he "possibly did say that [he] had saw them greeting each other," later averring that he' was "pretty certain that [he] did." On 1 May, shortly before 8 a.m., Layton told Fine that he and Brackeen wanted to meet with him before he began his "daily routine." Fine asked why, to which Layton said he thought Fine knew "what it was about." When Fine appeared at Layton's desk about 8 a.m., Fine repeated the question and Layton said the meeting was "due to [Fine's] union activities." Fine asked if he could have "another representative" with him in that event. Layton replied that that was not necessary; that "it was just a verbal-warning meeting" and not "any big deal." Fine then said he was going to bring in a tape recorder from his truck, which he did, after which the two, with- out Brackeen, met in Brackeen's office.Layton told Fine that Brackeen was absent because of a "miscommunica- tion." Layton announced at the start that "the NLRB has regulations that govern" the conduct of employees as well as employers, and that "it has been brought to our SOUTHWEST GAS CORP. attention that we have got .. • a complaint from a tech- nician that you were soliciting for the union during com- pany hours." Layton continued that "it is against the NLRB rules to do it during company hours." Fine protested that he "didn't do it." Layton countered: "I've -got a written complaint. OK?" Fine presently remarked that he was "extremely aware of the law," to which Layton rejoined, "Then tell me what the law is, then, so I can . . . under- stand what you heard." Fine answered: "Like you say, I cannot solicit for the union on company time nor on company property. I cannot pass propaganda on compa- ny time nor on company property. In other words, when I'm at work, I'm at work." Layton said, "That's cor- rect." Layton shortly acknowledged that he is "not an expert" on the law in the area, but that he did know union solicitation "can't be done on company time" and that lie "need[ed] to make sure that" Fine realized that. Fine said that he did, but that he wanted to know the identity of his "accuser." Layton replied that Respond- ent's human resources coordinator, Susan Henning, had that information. Fine repeated that he had not solicited "on company time." Layton came back that Respondent had ... to make sure that you work during working hours ... and that the union activities are done on your time and the person that you are soliciting, you know, their own time, not during company time, not interrupting work schedules. Fine interjected that he "agreed wholeheartedly," and Layton went on: "[I]t's kind-of like a verbal information warning situation or whatever, however you want to call it. . . . It's to the point it could get into disciplinary action if we get more complaints." Fine again proclaimed his innocence-"[I]f somebody has said that I have solicited them on company time on company property, they are totally incorrect." The only thing he had done "on company time," he went on, was to inform employees of union meetings, and,that was not done "in such a manner to let it interfere with [his] work schedule, either." Layton said he did not "know even if that is a violation"; Fine said he did not know, either, but would "`like to find out"; and Layton iterated that the NLRB "has strict guidelines as to what can be done, not only by the company but by the employee." Later in the exchange, Layton remarked: We might have to take disciplinary action ... if this is a justified complaint. And ... if it's a justi- fied complaint, then we need to, you know .... If it continues from this point on .... We might have to take further disciplinary action, and I don't' think that you're really into that, as well as us. Layton took notes during the meeting, even asking Fine to repeat certain remarks, "to try to get as much of what his feelings were about it .. ,, so that that could also be conveyed to management or to [himself] later." After the meeting, relying on his notes, Layton pre- pared this memorandum: 5,45 To: FILE From: Jeffrey O. Layton Date: May 1, 1986 Subject: Verbal Warning and Advisory Meeting/Ed Fine I had a meeting with Edwin Fine on May 1, 1986 at 8:40 a.m. to advise him that management has re- ceived a written complaint from a Service Techni- cian. This complaint stated that Ed was soliciting for the teamsters union during working hours. I advised Ed that the National Labor Relations Board has rules which govern both the company and union actions; and solicitations for the union during working hours violates those rules. I ex- plained to Ed this was a verbal warning, but further disciplinary action would be taken if he continued solicitations during workings hours. Ed explained that he was very aware of the N.L.R.B. requirements and he did not want to jeop- ardize his job. He said the only thing he has done during working hours is to advise other employees of union meetings, not realizing he was doing any- thing wrong., That if advising fellow employees of union meetings was a violation he would like to know. Ed stated that he still thinks Southwest Gas is a good company; but in the past when complaints were made about management people the problem improved for a while, then the problem manage- ment figure returned to their old ways. Ed feels that employee human rights are being violated and the union may be able to correct the problems if the company can not. He hates to see the situation come to this-with the union; but has very strong feelings about what is happening to em•• ployees. He stated many are afraid they will lose their jobs if they complain. Layton testified that this memo was placed in a desk file, but not in Fine's personnel file. It was not shown to Fine. Respondent has no generally announced prohibition against solicitation.4 Indeed, it long has tolerated, even encouraged, a multitude of solicitation activities on its premises during worktime-charitable fund raising (Junior Achievement, Girl Scouts, United Way), sports pools, the selling of wares by employee to employee, etc. Conceding that Respondent is "more restrictive" of union activity than of these others, Down testified that the latter "engender a spirit of cooperation within the company" and that support of charitable causes "bring[s] 4 By memorandum dated 3 March 1981, Respondent rescinded a rule entitled "Solicitation on Company Premises" out of concern that it "un- lawfully restrict[ed] employees' rights to discuss and distribute informa- tion on organizational or, representational matters." The memo stated in part: "The' Company never intended to enforce, and never has enforced the rule in such a way as to prevent solicitation on non-working time (for instance, during breaks and lunch time, or before or after starting or'quit- ting time), or to interfere with distribution of literature in non -working areas[, but] . . . to remove any ambiguity or confusion which [the rule] may have inadvertently 'caused, that rule is rescinded in its entirety 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the company a tremendous amount of credibility in the community," whereas "union- organizing activities [are] the exact opposite," breaking down "all the cooperative feelings, that you have between employees, between de- partments." Under Respondent's four-step disciplinary system, Fine would ,be subject to a written warning should he trans- gress again within a year of the first offense, and to pro- bation and then discharge in the event of third and fourth offenses within that year. _ Brackeen, although the decision-maker as concerns the warning, did not testify. Neither did Morgans Globe su- pervisor, Doss. B. Conclusions and Reasons Whether . Fine's encounter with Morgan happened after Fine's clock-in time, Respondent's later-communi- cated rule curtailing union solicitation by Fine violated Section 8(a)(1) as alleged, necessarily tainting 'the con- comitant verbal warning, as well. The bases for these conclusions are: 1. The limits on solicitation, as' articulated by Layton, are invalidly broad. "[A] rule is presumptively invalid, if it prohibits solici- tation on the employees' own time," and a ban against soliciting during "working hours," as distinguished from "working time,'' comes within the adverse presumption. Our Way, Inc.,, 268 NLRB 394, 394-395 (1983). See also Consolidated Edison Co., 280 NLRB 338 (1986); Perth Amboy Hospital, 279 NLRB 52 (1986); Essex Internation- al, 211 NLRB 749 (1974). Layton couched Respondent's prohibition in terms not only of "working hours," but two equivalents, "company hours" and "company time." Additionally, he endorsed Fine's formulation that he was not to solicit "on company time nor on company prem- ises." The adverse presumption thus obtains, and the record contains no overriding- evidence that such a rule is necessary to maintain production or discipline, or serves some other legitimate interest. See Brigadier In- dustries Corp., 271 NLRB 656, 657 (1984); Wm. H. Block Co., 150 NLRB 341, 342-343 (1964). 2. Apart from its excessive breadth, the rule is "invalid on its face, because it -is directed solely against union. so- licitation." CO. W. Industries, 276 NLRB 960 (1985): See also Montgomery Ward, 269 NLRB 598, 599 (1984); Paceco, 237 NLRB 399, 401 (1978). 3. Beyond the rule's unwarranted breadth and facial infirmities, Respondent's warning of Fine over the fleet- ing exchange with Morgan, while allowing and even en- couraging a plethora of other, far more intrusive solicita- tion activities during worktime, demonstrates that the rule is disparately and hence unlawfully'enforced against union solicitation. Brigadier Industries Corp., supra at 657; Win. H. Block to., supra at 343. CONCLUSIONS OF LAW 'Respondent violated Section 8(a)(1) about 1 May 1986, as alleged, by communicating a rule that curtails union solicitation in an , overly broad and discriminatory manner, and by issuing a verbal warning to Edwin S. Fine to enforce that unlawful rule. On these findings of fact and conclusions of law and on the entire record, I issue the following, recommend- ed ORDER The Respondent, Southwest Gas Corporation, Tucson, Arizona, its officers, agents, successors, and assigns, shall 1. Cease'and desist from (a) Communicating, maintaining, or enforcing a rule that discriminatorily prohibits any employee from talking about or soliciting on behalf, of Construction, Building Materials and Miscellaneous Drivers Local Union No. 83, an affiliate of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization, during "working hours," "company hours," or "company time," or on "company premises." (b) Issuing a verbal warning to, or otherwise disciplin- ing or discriminating against, any employee to . enforce such a- rule. (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) Remove from its records,, wherever situated, all evidence of and reference to the unlawful verbal warn- ing given to Edwin S. Fine about ' 1 May 1986, and notify him in writing that this has been done and that the warn- ing will not be used as a basis, in whole or part, for future personnel action against him. (b) Rescind the rule communicated about 1,May- 1986 that discriminatorily prohibits employees , from soliciting on behalf of Local Union No, 83 during "working hours," "company hours," or "company time," or On "company premises." (c) Post at its operations center in Tucson, Arizona, and at each of the other facilities, in its Apache Division, copies of the attached notice marked "Appendix:"s Copies of the notice, on forms provided by the Regional Director for Region 28, , after being signed by the Re- 'spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive'daysin conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- 5 All outstanding motions inconsistent with this recommended Order are denied. If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings; conclusions, and recom- mended 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 purposes. 6 Divisionwide posting is appropriate inasmuch as one of the parties to the encounter precipitating 'Respondent 's misconduct, Morgan; is em- ployed elsewhere than in Tucson; and because the organizing drive being divisionwide, the unlawful curtailment of solicitation presumably envi- sions corresponding application - If this Order is enforced by a judgment of a United States court of ap- peals, the words in the notice reading "Posted' by Order of the National Labor Relations Board" shall' read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." SOUTHWEST GAS CORP. ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose, not to engage in any of these protect- ed concerted activities. 547 WE WILL NOT communicate, maintain, or enforce a rule which discriminatorily prohibits any employee from talking about or soliciting on behalf of Construction, Building Materials and Miscellaneous Drivers Local Union No. 83, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,, or any other labor organization, during "work- ing hours," "company hours," or "company time," or on "company premises." WE WILL NOT issue a verbal warning to, or otherwise discipline or discriminate against, any employee to en- force such a rule. 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. WE WILL remove from our records, wherever situated, all', evidence of and reference to the unlawful verbal warning given to Edwin S. Fine about 1 May 1986, and WE WILL notify him in writing that this has been done and that the warning will not be used as a basis, in whole or part, for future personnel action against him. WE WILL rescind the rule communicated about 1 May 1986 that discriminatorily prohibits employees from so- liciting on behalf of Local Union No. 83 during "work- ing hours," "company hours," or "company time," or on "company premises." SOUTHWEST GAS CORPORATION