Baldor Electric Company

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 614 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baldor Electric Company and General Drivers and
Helpers Local Union No. 373, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Petitioner.
Case 26-RC-5972
September 28, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS PENELLO, MURPHY, ANI) TRUESDAI.E
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret-ballot election was con-
ducted in the stipulated unit described below. The
tally of ballots furnished the parties showed that, of
approximately 1,138 eligible voters, 1,083 cast valid
ballots, of which 511 were for the Petitioner and 572
were against. There were 15 challenged ballots, and
the challenges were not sufficient in number to affect
the results of the election. Thereafter, the Petitioner
filed timely objections to conduct affecting the results
of the election. In accordance with the National La-
bor Relations Board Rules and Regulations, the Re-
gional Director conducted an investigation and, on
July 6, 1979,' issued and served on the parties his
Report on Objections, recommending that one of the
Petitioner's objections be sustained and the election
held on May 18 be set aside, and that a direction of
second election issue. Thereafter, the Employer filed
timely exceptions to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find that the fol-
lowing employees constitute an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees,
warehouse and foundry employees employed by
All dates, unless otherwise noted, are in 1979.
the Employer at its Zero and Wheeler Avenue
Plant in Fort Smith, Arkansas, excluding all of-
fice clerical employees, professional and techni-
cal employees, watchmen, guards and supervi-
sors as defined in the Act.
5. The Petitioner raised 17 objections to the elec-
tion. It withdrew 10 of' them, and we adopt the Re-
gional Director's recommendation that their with-
drawal be approved. Seven of the objections,
including Objection I at issue here, described inci-
dents which have been alleged as 8(a)(1) violations
and included by amendment in the complaint and
notice of hearing in Case 26-CA--7796.2 Accordingly,
the Regional Director's report dealt with only one
aspect of Objection 1, which alleged that the Em-
ployer had maintained an invalid no-solicitation/no-
distribution rule during the critical preelection period.
The Regional Director's investigation revealed that
the Employer's handbook "You and Baldor" con-
tained, as alleged, invalid no-solicitation/no-distribu-
tion rules. Thus, Rule 6 under "General Plant Rules"3
reads as follows:
6. Soliciting of or by employees for the sale of
any item or the collection of funds is not permit-
ted without the authorization of the plant man-
ager. No literature or printed matter may be
posted or circulated without authorization.
The same handbook, under "For Your Informa-
tion," contained two other rules, infractions of which
were not subject to the Employer's disciplinary proce-
dure:
NO DISTRIBUTION
Because a clean plant is necessary for proper op-
eration and in the interst of good housekeeping,
there will be no distribution of any type of litera-
ture or written material in working areas of the
plant, except for such material distributed by
management necessary for management func-
tions.
NO SOLICITATIONS
There will be no solicitations for membership or
funds for any organization in the working areas
of the plant without plant manager approval.
The "General Plant Rules," as well as the rules enti-
tled "For Your Information," were promulgated and
distributed to employees about 1-1/2 years ago, and
2 The original complaint issued on June 8. pursuant to a charge which was
filed on Ma 3.
3 Employees were subject to discipline for violating the "General Plant
Rules." and could be discharged for repeat violations.
245 NLRB No. 56
614
BALDOR ELECTRIC COMPANY
each employee is provided a copy of the handbook.
Every new employee also receives a copy of the hand-
book. In addition, the Regional Director found that
the Employer's plant manager admitted in an affida-
vit that the Employer had enforced the invalid rules
against employees on at least one occasion early in
March. Except for this one incident, however, the
Employer contended that employees were permitted
to solicit on nonworking time and to distribute in
nonwork areas.
The Regional Director concluded, and we agree
with him, that the Employer's no-solicitation and no-
distribution rules are invalid. Rule 6 prohibits all so-
licitation and distribution unless approved by man-
agement, while the "For Your Information" rules un-
lawfully restrict solicitation during nonworking time.4
Finally, the Regional Director found, and we agree,
that the existence of the invalid rules, coupled with
the Employer's enforcement of the rule only a few
weeks before the election, created a coercive atmo-
sphere which interfered with the employees' free
choice in the election.
The Employer, however, argues that throughout
the critical period employees freely distributed litera-
ture and solicited support for the Petitioner and that,
therefore, the invalid rules had no effect on the elec-
tion. The Employer states that after it stopped solici-
tation for the Union in March, it spoke to its attor-
ney, who informed the Employer of the law regarding
distribution and solicitation. The Employer asserts
that such activity was permitted thereafter. This de-
fense is contained in affidavits, and the Employer re-
quests a hearing to prove these facts.
The Regional Director rejected this defense on the
grounds that, under Board law, the Employer must
show that it informed the employees generally that it
no longer had an invalid no-solicitation/no-distribu-
tion rule, and that henceforth it would only enforce a
valid rule. The Regional Director found that, accept-
ing the truth of the affidavits, the Employer had not
shown a comprehensive repudiation of the invalid
rules. Therefore, he found, no hearing was required,
and the objection should be sustained. We agree with
the Regional Director. Where, as here, the Employer
'Thus, even if., as the Employer contends, Rule 6 was not intended to
apply to solicitation and distnbution for union purposes, the second "No
solicitation" rule-which clearly applies to such activities-is invalid.
has invalid no-solicitation/no-distribution rules
which have been published and distributed to all em-
ployees and thereafter enforced by the Employer
against some employees, it is necessary, in order to
assure a free election, that the Employer generally
repudiate the rule to all employees. Here, the employ-
ees were never informed in a comprehensive fashion
of their right to distribute literature in nonwork areas,
or to solicit support for the Petitioner on nonworking
time. As the Regional Director concluded:
[Elmployees were never informed, by means
which would have had a comprehensive effect,
that the no-solicitation/no-distribution rules had
been modified or rescinded .... [Therefore,] em-
ployees, in order to exercise their legitimate
rights during the critical period, would have had
to do so in contravention of rules which had re-
cently been enforced and might again be en-
forced at any time the Employer chose. Putting
employees in such jeopardy deters them from ex-
ercising their legitimate rights to solicit and dis-
tribute literature on behalf of the Union.
A second election is therefore required.5
Accordingly, the Board has considered the Peti-
tioner's objection, the Regional Director's report, and
the Employer's exceptions, and, for the reasons stated
above, adopts the Regional Director's findings, con-
clusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts the recommendation of the Re-
gional Director that the election held on May 18,
1979, be set aside and hereby orders that the election
conducted on May 18, 1979, be, and it hereby is, set
aside and that Case 26-RC-5972 be, and it hereby is,
remanded to the Regional Director for Region 26 for
the purpose of conducting a new election at such time
as he deems that circumstances permit the free choice
of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Ragu Foods, Inc.. 217 NLRB 1109 (1975); and see The Dezurik Division
General Signal Corporation, 234 NLRB 914 (1978).
615