Barry Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1970

181 N.L.R.B. 1003 (N.L.R.B. 1970)

BARRY INDUSTRIES, INCORPORATED 1003
Barry Industries , Incorporated and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 6-CA-4606
April 8, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On December 12, 1969, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices, as to
which he recommended that the complaint be
dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
brief, the General Counsel filed limited exceptions
and a brief, and the Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner with the following modifications.
The Trial Examiner found that the Respondent
did not, as alleged in the complaint, violate Section
8(a)(1) by foreman Ransom's interrogation of
employee Webb as to whether he and other
employees had signed union authorization cards. He
found that the interrogation by Ransom occurred
after the Union claimed majority status and
requested recognition, its purpose was to ascertain
the validity of that claim, Webb was so informed
and assured against reprisals, and the interrogation
thus substantially conformed to the criteria set forth
by the Board in Struksnes Construction Co , Inc
165 NLRB 1062. In Struksnes, however, the Board
The findings and conclusions of the Trial Examiner are based in part
upon his credibility determinations , to which the Respondent has excepted
After a careful review of the record herein , we conclude that the Trial
Examiner's credibility resolutions are not contrary to the clear
preponderance of the relevant evidence and, accordingly , find no basis for
disturbing them Standard Dry Watt Products , Inc , 91 NLRB 544, enfd
188 F 2d 362 (C A 3)
found, inter alia, that the interrogations must be by
secret ballot and must occur in a background free
from unfair labor practices or an otherwise coercive
atmosphere. Here the interrogation was oral, not by
secret ballot, and at the same time the Respondent
was engaging in numerous other unfair labor
practices, including threats, interrogation, and
discriminatory discharges, in violation of the Act.
We find merit in the General Counsel's exceptions
concerning this finding of the Trial Examiner.
Accordingly, contrary to the Trial Examiner, we
find that the interrogation of Webb by foreman
Ransom was in violation of Section 8(a)(1).
The General Counsel also took exception to the
use of the words "in any like or related manner"
rather than the words "in any other manner" in
paragraph 1(e) of the Trial Examiner's
Recommended Order. The General Counsel asserts
that the broad pattern of the violations in the
instant case evinces a general hostility on the
Respondent's part to the rights of employees to
engage in legitimate concerted activities, and that
the Board should issue a broad order enjoining all
forms of unlawful interference with rights
guaranteed by Section 7 of the Act. We find merit
in the contentions of the General Counsel and shall
issue a broad order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent,
Barry Industries, Incorporated, Chambersburg, Pa.,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified-
Delete from paragraph 1(e) of the Trial
Examiner's Recommended Order the words "In any
like or related manner," and substitute therefor the
words "In any other manner."
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner . Upon a charge filed
May 23, 1969, by Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO (herein
called the Union ), the General Counsel of the National
Labor Relations Board issued a complaint on August 18,
1969, which alleges that Barry Industries , Incorporated
(herein called Respondent or the Company ), had engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(l) and (3) and Section 2(6) and
(7) of the Act. In substance , the complaint alleges that the
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging three employees because of their activities on
behalf of the Union , and that it further violated Section
8(a)(1) of the Act by interrogating employees regarding
their union membership, and by threatening them with
181 NLRB No 159
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge if they engaged in such union activities The
Respondent's answer as amended denies the commission
of the charged unfair labor practices, and avers as an
affirmative defense that under Section 2(2) of the Act, the
Board does not have jurisdiction of the alleged unfair
labor practices
Pursuant to due notice, a hearing in this case was
conducted before me at Chambersburg, Pennsylvania, on
October 7 and 8, 1969. Upon the entire record, and my
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed by the General
Counsel and the Respondent, I make the following-
FINDINGS OF FACT
1. COMMERCE
The Respondent's answer admits that it is a District of
Columbia corporation whose principal office is located in
Washington, District of Columbia, that it is engaged in
performing janitorial services at United States Army
installations located in the States of Pennsylvania and
Virginia, and that during the 12-month period
immediately proceeding the issuance of the complaint in
this case, it performed services valued in excess of $50,000
for the United States Army at the Letterkenny Army
Depot (herein called Letterkenny) located near
Chambersburg, Pennsylvania.
Although the Respondent also concedes that it is an
employer under the Act, it contends that the Board
neither has, nor should exercise, jurisdiction over its
operations at Letterkenny "because the United States
Government is the contractor for the services rendered
and exercises ultimate control over the employment
relationship.", I regard this contention as without merit
for the following reasons:
The Company, and not the Army, hires the employees
who perform the janitorial services required by
Respondent's contract with the Army ' The Respondent
alone determines the hours which its employees must
work,3 fixes their rate of compensation, and decides when
and how much of an increase in pay they should receive.'
In addition, the Respondent's employees are supervised in
the performance of their duties by its foremen, and not
Army personnel,' and the Respondent can and does
exercise almost complete control over the discharge of
employees."
1 Respondent 's Br , p 3
'The only Army control of the hiring process is that employees hired by
Respondent are subject to security clearance by the Provost Marshal, and
in that connection new employees must furnish the Army with a completed
personal history form
'The only Army requirement in this regard is that the janitorial services
must be completed within a 22 1/2-hour period between 7 30 a in and 6
am the following day
'Unlike the case of Herbert Harvey. Inc . 171 NLRB No 36, enfd 72
LRRM 2213 (C A D C ), the Respondent 's contract is for a fixed-fee and
is not a cost-plus contract
'The Respondent 's contract with the Army provides that its performance
is subject to inspection by Government inspectors The Company's Senior
Supervisor at the depot , John L Mills, accompanies the Government
inspector on the latter's tour of inspection , and if something needs
correction , the inspector tells Mills about it "most of the time," but
occasionally he will tell an employee "to correct it " I do not regard this
as supervision by the Army of Respondent 's employees
'The only exceptions to the Respondent's exclusive control over the
termination of its employees are as follows Employees who after
investigation by the Army are regarded as possible security risks, may be
denied either access to the depot, or restricted to nonclassified areas In
Upon the foregoing record, I find as follows-
a. Respondent is an employer whose operations clearly
affect commerce within the meaning of the Act.'
b The Respondent's janitorial services at the
Letterkenny Depot are not so intimately connected with
the operations of the depot as to justify the extension of
the Army's exempt status under Section 2(2) of the Act to
the Respondent.'
c. The right of the Army to require the dismissal of
Respondent's employees because they are security risks or
for misconduct on its premises, does not thereby make the
Army a joint employer of the Respondent's employees.
d Finally, and in any event, Respondent's exclusive
control over the wages, hours, supervision, and conditions
of employment of its employees at Letterkenny clearly
render it able to engage in meaningful collective
bargaining with the Union, or with any other labor
organization which its employees may designate as their
representative
Accordingly I conclude that the Respondent is an
employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over the janitorial
activities of the Respondent at the depot '
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
111. THE UNFAIR LABOR PRACTICES
A. The Commencement of Union Organization
In the latter part of April 1969,10 about eight of the
Respondent's employees who worked at Letterkenny
attended a meeting with Sam Parsons, a representative of
the Union, at Conrad's Diner in Chambersburg,
Pennsylvania The meeting had been arranged by Mrs.
Fannie Miller, an employee of Respondent at the depot.
The employees who attended the meeting signed union
authorization cards, and each was given a supply of
additional cards to solicit from other employees. Parsons
cautioned the employees who attended the Union meeting
not to have them signed on company time
B The Company and the Army's No-Solicitation
Rules
At the time union organization commenced , there was
in effect an Army Regulation AR 210-10 , entitled
"Chapter 4, Relations with Public ." 11 In respect to
solicitation this regulation provided , inter alia, as follows:
addition, the Respondent 's contract with the Army provides that
employees assigned by the Contractor [Respondent ] to perform the
work shall be subject to dismissal for misconduct on the depot, at the
request of the Contracting Officer
'Gerommo Service Company. 129 NLRB 366
'There is in fact no evidence of the nature of the Army's operations at
the depot other than an enumeration in the contract of the warehouse,
administration, and other buildings which are to be furnished with
janitorial services
'Geronimo Service Company, supra, Herbert Harvey. Inc, supra,
NLRB v Carroll, 120 F 2d 457 (C A 1)
"All dates hereinafter will refer to 1969 unless otherwise noted
"Resp Exh I
BARRY INDUSTRIES, INCORPORATED 1005
4-6. Request from union representatives to enter these premises for such purposes This prohibition
installations
b. Labor representatives are not authorized to engage
in organizing activities, collective bargaining
discussions, or other matters not directly connected
with the Government contract on military installations
However, the installation commander may authorize
labor representatives to enter the installation for the
purpose of distributing organizational literature and
authorization cards to private contractors' employees
provided such distribution does not -
(1) Occur in working areas or during working
times,
(2) Interfere with contract performance,
(3) Interfere with the efficient operation of the
installation, or
(4) Violate pertinent safety or security
considerations.
The determination as to who is an appropriate labor
representative should be made by the installation
commander after consultation with his labor advisor or
judge advocate. Nothing in this regulation, however,
shall be construed to prohibit private contractors'
employees from distributing organizational literature or
authorization cards on installation property where such
activity does not violate the conditions enumerated in
this subparagraph [Emphasis supplied.]
The Letterkenny Depot also had in effect a no-solicitation
rule which was contained in its regulation known as
LEADR 690-1. This regulation provided, inter alia, as
follows:' E
SECTION VII
Chapter 71
Conduct
1. General Provisions -
a. Employees of the Federal Government are
servants of the people Because of this, their conduct
must , in many instances, be subject to more restrictions
and to higher standards than may be the case in private
employment Accordingly, employees of the Federal
Government are expected to conduct themselves in a
manner which will reflect credit on their employer. The
following material represents standards of conduct to be
adhered to by all employees No attempt has been
made to list all infractions of rules for which penalties
may be assessed In considering penalties for offenses
not listed, it should be established that the employee
could reasonably be expected to know what standards
of conduct were expected of him.
* * * * *
5. Canvassing, Soliciting , or Peddling --
a Employees are not permitted to engage in
canvassing , soliciting , or peddling on Department of the
Army premises nor will outside persons be, admitted to
"Resp Exh 2
applies to such activities as soliciting or selling for
personal gain; soliciting memberships except as
authorized in connection with organized employee
groups; or soliciting contributions from other employees
for a gift to anyone in a superior official position.
[Emphasis supplied.]
b. Canvassing and soliciting is permitted for activities
of a broad social nature or which are beneficial for
employees and which have been specifically authorized
in writing.
c. An employee may make voluntary contributions in
behalf of other employees in case of death, illness,
marriage, or retirement
Although by its unambiguous terms, this regulation
applied only to civilian "employees of the Federal
Government," Jerome J Kloch, the civilian Chief Counsel
employed by the Army at the depot, testified that the
words in paragraph 5, "nor will outside persons be
admitted to these premises for such purposes," made the
no-solicitation rule applicable also "to employees of
contractors on the Base."
The Respondent also had a no-solicitation, canvassing,
or selling rule in effect at the times material herein.
According to John L Mills, the Company's top official at
the depot," this rule, though oral, was in effect for several
years. Mills described the rule as follows-
There was no solicitation [allowed] on the Army Post
without prior permission. There is an alternate [sic]
[exception] to this rule. Among the employees of the
Company, you may solicit for somebody who died,
somebody getting married, somebody who is in the
hospital and you want to send them a bouquet of
flowers, or somebody retiring. These are exceptions that
you don't have to have prior permission to solicit
among the members [sic] of the contract [sic]
Mills further testified that in September 1968, he set this
rule (which he adopted from the Letterkenny rule,
paragraph 5) down in writing as a part (paragraph 4) of
the orientation which he gave to newly hired employees.
The rule as thus recorded, stated:"
4. Now what I am about to tell you is very
important Please listen carefully and if I say something
that you do not understand, please say so. -
Canvassing, Soliciting, or Peddling are not permitted
on this Depot. Selling of anything, soliciting
memberships except as authorized in connection with
organized employees groups or soliciting contributions
from other employees for a gift to anyone in a Superior
Official Position.
Canvassing and soliciting are permitted for activities
of a broad social nature, but have to be specifically
authorized in writing. And this is done during off-duty
time or you (sic) lunch hour. You may make a
voluntary contribution in behalf of other employees in
case of death, illness, marriage, or retirement This is
approved by the PIO. Office here. Any Questions?
None of the rules quoted above was either posted by
Respondent, or distributed to employees."
"Mills previously had served 22 years in the Army with the rank of
Master Sergeant
"See Resp Exh 4 entitled "Orientation for Employees "
"Mills testified that he "read" the Company 's rule to his employees
"every time [he] had a meeting with [his] employees," and that he
conducted such meetings "every payday, every other payday," and when
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C The Discharge of Charles J Taylor, Fannie E
Miller, and John E Homer
The Letterkenny Depot is a large army warehouse base
The Respondent's janitorial services involve the cleaning
of 74 buildings which are spread over an area of about 5
square miles A total of 86 employees are employed on
two shifts to perform the work required by Respondent's
contract with the Army.'6 The Respondent has an office at
the depot where its employees sign in before going to
work, and out at the conclusion of their day's work. After
signing the book, the employees are driven from the
Company's office to the building where they work, either
by one of several company-owned vehicles, or by the cars
of employees who have permits to drive on the base At
the end of the day's work, the process is reversed and
employees are driven from the buildings where they work
to the Company's office to sign out
After the Union meeting at Conrad's Diner in late
April, at least three of Respondent's employees, Mrs
Fannie E Miller, John E Homer, and Charles J Taylor,
solicited other employees to sign union cards. Between
late April and early May, each of these three employees,
by his or her own admission, passed out some union cards
to employees while they were on depot premises
However, the uncontroverted and credited testimony in
the record discloses that all such activities occurred either
while they were en route from Respondent's office to the
building which they were assigned to clean, during lunch
periods, while on coffee break time, or while awaiting a
ride back to the office at the end of the workday.
The solicitation of union cards on the depot by Mrs
Miller and Homer was promptly reported to Mills by his
night foreman John Weisner, and on the following day,
Mills had separate conversations with Mrs Miller and
Homer'' According to Mills, whose testimony in this
regard I credit, he told Homer and later Mrs. Miller that
he had been told that they had solicited or passed out
cards on depot premises. Mills further testified that both
Homer and Mrs Miller admitted passing out union cards,
but denied doing so on the depot, and that he then told
them that he would "have no alternative but to let [them]
go" if he found out that they engaged in further such
activity on depot premises Mills further admitted that in
his conversation with Homer, he asked Homer, "What
union are you representing9" Homer answered "Meat
Cutters " Mills asked what the dues and initiation fees
were, and Homer replied, "I don't know " Mills asked,
"What did they promise you9" Homer answered,
"Nothing." Mills said, "You mean to tell me you're
representing a union and don't know nothing [sic] about
it " Homer answered, "I don't know." Finally Mills said,
there were specific problems relating to the work The Respondent pays its
employees twice a month, and thus, according to Mills, this rule was
"read" to them on frequent and numerous occasions However, all of the
witnesses who testified regarding this subject denied that Mills had read
the rule at any employee meeting before the solicitation of union cards in
this case had occurred, some denied knowledge of any such rule before
union organization began, and one, a witness for Respondent, testified that
the only occasion the rule was read to her was when she was hired 2 years
ago Accordingly, I do not credit Mills' testimony in respect to his
frequent oral reiteration of the rule However, I am nevertheless persuaded
by the record that many of Respondent's employees were aware of the
existence of some limitations on solicitation at the depot, but did not know
the precise term of the Army's or the Company's rules
"The day shift works from 7 a m to 3 30 p m , and the night shift hours
are from 4 30 to 12 midnight Each shift has a 30-minute lunch (supper)
hour
"Okay, I wish you luck "'s On an unspecified date in early
May, Mills also had a conversation with Army Counsel
Kloch According to the latter's credited testimony, Mills
told Kloch that it had been brought to his attention that
some of his employees had solicited memberships "on the
Company's time," and that "he [Mills] had told them to
cut it out, that they couldn't do it on Company time."
Mills then asked Kloch "whether this was correct," and
Kloch replied that "according to the regulations," they
"could not do it on Company time "'
At about 4:15 p m. on May 14, Mills assertedly was
informed by Nancy Carpenter, a night shift employee,
that Charles J. Taylor had passed out union cards on the
night previous in Building 3 on the depot 20 According to
Taylor's uncontroverted and credited testimony, what had
happened was that during nonworking time, employee
Preston Carpenter, the father of Nancy, had "asked to see
one," and Taylor had given him a union card.
After talking to Nancy Carpenter, and admittedly
without inquiring as to whether or not the card passing
had occurred during working hours," Mills promptly held
a, meeting with all the night shift employees who then
were in the process of signing in to go to work. According
to Taylor's credited testimony, Mills told them that it had
come to his attention that union cards "were being passed
on the Depot," and that "he wanted the distribution of
cards to stop " Mills then instructed all of the employees
except Taylor to proceed to their work assignments, and
told Taylor to come into his office There, Mills
concededly said to Taylor, "You must be out of your
mind What's wrong with you. You know you're not
supposed to give out these cards on the Depot." Mills
then told Taylor that he was through, asked Taylor for his
"According to Mills , these conversations occurred on April 29 Mrs
Miller and Homer testified that they occurred on May 6 Since the date of
the conversation is immaterial to any issue in the case, I deem it
unnecessary to resolve the conflict
,.The versions of these conversations of Homer and Mrs Miller varied
to some extent from Mills' testimony credited above I have credited Mills'
version, notwithstanding that I regard Homer and Mrs Miller as generally
reliable witnesses and do not always so regard Mills (see fns 15, 19, 23,
26, and 36, supra and infra ), because in this respect , Mills memory of the
conversations appeared to me more precise and certain than that of the
two employees As Judge Learned Hand aptly said in N L R B v
Universal Camera Corp , 179 F 2d 749, 754 (C A 2), reversed on other
grounds 340 U S 474
It is no reason for refusing to accept everything a witness says, because
you do not believe all of it , nothing is more common in all kinds of
judicial decisions than to believe some and not all
"Mills' version of his conversation with Kloch omitted any reference to
solicitation "on Company time " According to Mills, he merely asked
Kloch whether the Army's regulation regarding "solicitation , peddling and
canvassing on the Depot pertain to my people," and that Kloch
replied, "Yes Why? What 's the matter9" Mills then said, "I understand
there is some canvassing and solicitation going on among my people," and
Kloch assertedly replied, "Well, they can't solicit on the Depot , period " I
regard Kloch's version of this conversation as more reliable than Mills',
and I therefore credit Mills' testimony in this regard only to the extent
that it accords with Kloch's
'°The foregoing is based on Mills' testimony Carpenter , although still an
employee of Respondent, was not called as a witness , and no explanation
was offered for the failure to do so
"Mills' view of company time is revealed by his following testimony
Once they [the employees ] come through the gate [of the depot], they
are on Company time
M M M
They belong to me from the time they get through the gate until the
time they go out of the gate
This testimony explains Mills' admitted lack of inquiry as to whether the
solicitation of union cards occurred during working hours or during
non-working periods such as lunch, supper, coffee breaks, or while in
transit to or from their work sites
BARRY INDUSTRIES, INCORPORATED 1007
"badge," and Taylor gave it to him.22
The following morning (May 15) at 8 a.m., Mills
summoned Mrs. Miller to his office, and according to her
credited testimony, he said, "I told you you would get
yourself in trouble for trying to get in a union " Then
Mills told Mrs. Miller that he had called the Respondent's
office in Washington, D C , and that they had instructed
him "to get rid of me " Mills then gave Mrs. Miller her
paycheck and she "left the depot "21
Although Mills professedly received the same
information from Taylor about Homer as about Mrs.
Miller,24 and notwithstanding Mills' knowledge of prior
union solicitation by both Homer and Mrs. Miller, he
took no immediate action against Homer when he fired
Miller 25 However, according to the credited testimony of
Farrell Stallsworth, a witness called by Respondent, at
2-30 p.m. of "the day that Homer got discharged (May
15)," Mills asked Stallsworth, "if I'd got any cards or was
Homer passing out cards about the Union." Stallsworth
further testified, "I just said we had a conversation
pertaining to the Union and that he [Homer] wanted to
know if I wanted a card." 16 Later that day, Homer was
driven from his job to Mills' office by Foreman Ransom
According to Homer's credited testimony, when he walked
in, Mills asked him for his "badges," Homer gave them
to him, and Mills gave him his paycheck" and said, "I
told you that Union would get you in trouble."
That same day, Mills again consulted Army Counsel
Kloch. According to Kloch's credited testimony, Mills
asked Kloch "if I thought he was right in discharging
these employees after he warned them about soliciting
union memberships on Company time," and Kloch said "I
thought he was."
D Additional alleged interference , restraint, and
coercion of employees
1. On May 16, the day after Mrs Miller and Homer
were fired, Mills held a meeting with his day shift
employees At this meeting, Mills admittedly told the
employees that he had fired three employees "for passing
out Union cards on the depot, and if I heard tell of [sic]
or caught anybody else doing it, I had no alternative but
"Mills also testified that Taylor asked him what Mills was going to do
about the other union card solicitors , and that Taylor then revealed to him
that "John Homer and Fannie Miller were also passing out cards " Taylor
testified that Mills asked him who else was soliciting , and that he replied
that he did not know Since the complaint does not allege unlawful
interrogation of Taylor by Mills on May 14 , and since the reason that
Mills fired Mrs Miller and Homer the next day is not disputed , I regard
the resolution of this conflict in testimony as immaterial to the
determination of any issue in this case
"In respect to this conversation , Mills first admitted and then denied
that he told Mrs Miller that the Union would get her in trouble In the
light of these self-contradictions , I regard Mills' testimony about this
conversation as unreliable , and since I was favorably impressed by Mrs
Miller's demeanor and testimony that she was a generally reliable witness,
I credit her version of this conversation
"See fn 22, supra
"Mills offered no explanation for not also firing Homer at the same
time he fired Miller
"Mills testified that his conversation with Stallsworth occurred at about
10 a in on May 15, and that Stallsworth gratuitously , and without request
by Mills volunteered the information that Homer "tried to give me and
Dan Sprinkle a card this morning" I do not believe Mills' version of this
incident , and regard that of Stallsworth , a former employee who displayed
no hostility towards Respondent , as more reliable
"Respondent 's regular payday for that work period was May 16, the
next day
to let them go."
2. On a date identified only as "sometime in June,"
Foreman Theodore A Ransom, an admitted supervisor,
had a conversation on the depot with employee George
Franklin Webb while the latter was working 28 According
to Webb's uncontroverted and credited testimony,
Ransom asked Webb where Employee Pole, who worked
with Webb, was Webb in turn asked Ransom what he
wanted of Pole Ransom replied that Mills had received a
call from Respondent's Washington office stating that the
Union had claimed majority status, and asking Mills to
ascertain "how many people had signed the Union cards."
Ransom then asked Webb if Pole had signed a union
card, and Webb replied, "Yes " Ransom then asked Webb
if he had signed one, and Webb replied in the affirmative.
Then Ransom asked about "several others," and Webb
told Ransom "to save him time and trouble of running
around the whole depot that the majority of the day crew
[about 211 had signed " Ransom then told Webb, "Well, I
promise you that this will not conflict with your job, you,
will not be fired "
E Analysis and Concluding Findings
The undisputed record in this case discloses that
Taylor, Miller and Homer were discharged by Respondent
for distributing union cards at the Letterkenny depot,
notwithstanding that they had engaged in these activities
during nonworking periods - either while being driven
from the Company's office to their place of work, during
lunch or coffee break time, and/or while waiting at the
conclusion of their workday to be driven from their place
of work on the depot to the Company's office to sign out.
The Respondent contends that the discharge of these three
employees was lawful because it was made pursuant to a
valid no-solicitation rule
It is by now well established that.
A no solicitation rule applicable to employees during
their non-working time unlawfully interferes with their
right to discuss self-organization among themselves,
unless the employer proves special circumstances that
makes such a restriction necessary to maintain
production or discipline.29
The Respondent concedes that its no-solicitation rule is
"broad" and that it prohibits all union solicitation and
distribution of union cards on the depot regardless of
whether the activity occurs during working or nonworking
time. In fact, Mills admitted that he fired these three
employees without inquiry or knowledge as to whether
their activity occurred during working or nonworking
time. This lack of interest and inquiry into the details of
the solicitation clearly was based on Mills' belief that all
the time that employees spend at the depot is "Company
time."'" The Respondent contends that its broad rule is
"not an unreasonable encroachment on the statutory
rights of its employees to organize" on the grounds of the
following "special circumstances" - (a) that since it
"performs its services for the United States Government
on a military reservation, it must conform its conduct and
the conduct of its employees to the requirements of
"The parties stipulated that shortly prior to this conversation, Union
Counsel Weinstock had requested recognition by Respondent of the Union
as the collective-bargaining representative of the Company' s depot
employees , and had stated that the Union represented a majority of them
"N L R B v Walton Manufacturing Company. 289 F 2d 177, 180 (C A
5), see also, Republic Aviation Corporation v N L R B , 324 U S 793,
Peyton Packing Company, 49 NLRB 828
"See fn 21, supra
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicable government and military regulations"
(b) that "failure by the Company to police the conduct of
its employees with respect to these regulations would
exacerbate relations with the Depot authorities and
ultimately jeopardize the contract"; and (c) that thus,
"sheer economic necessity dictated that the Company
police these requirements "J1
I regard this contention as devoid of merit and reject it
for the following reasons:
Under the overall Army Regulation AR 210-10,
applicable to all military installations including
Letterkenny, private contractors' employees such as
Respondent's are specifically permitted to distribute
"organizational literature or authorization cards on
installation property where such activity does not violate
the conditions enumerated in this subparagraph " The
only limitations in the regulation on such activity are that
it may not occur in working areas during working time;
interfere with contract performance or the efficient
operations of the installation; or violate pertinent safety or
security regulations Thus, even assuming arguendo that
the Army lawfully can adopt regulations which restrict
contractors' employees in the exercise of the rights
guaranteed to all employees by Section 7 of the Act, there
is nothing in AR 210-10 which required the Respondent
either to adopt or enforce an absolute prohibition against
all union solicitation or distribution of union cards by its
employees at the Letterkenny depot
My conclusion above in respect to AR 210-10 applies
also and equally to the Letterkenny depot regulation
LEADR 690-I. That regulation, by its express terms,
applies only to Federal Government employees who "are
servants of the people," and thus are "subject to more
restrictions and to higher standards than may be the case
in private employment" Read in this context, the
provisions of paragraph 5 quoted above which proscribe
canvassing, soliciting, or peddling by employees on Army
premises, apply only to employees of the Government at
the depot, and not to Respondent's employees 32
Accordingly, I conclude that the Letterkenny regulation
LEADR 690-I did not require Respondent to adopt or
enforce its broad no-solicitation rule.
There is no evidence that Respondent was required or
even requested by the Army to adopt its broad
proscription of all union solicitation and card distribution
by its employees at the depot. The Respondent admits
that the discharge of Taylor, Mrs Miller and Homer was
neither requested nor required by the Army The
Respondent has produced no evidence, either of the nature
of the Army's operations at the depot, or of any other
"special circumstance" which makes necessary the broad
restrictions it imposed on the rights of employees to
engage in self-organization on their own time. Finally, the
Respondent has offered no evidence to support the
speculation in its brief that a failure by it to adopt and
enforce an absolute prohibition against union solicitation
and card distribution by its employees on the depot would
either "exacerbate relations" with the Army or
"ultimately jeopardize" its contract.
I conclude from all the foregoing that the Respondent's
broad no-solicitation rule has not been shown to be
necessary, and that it therefore is an unlawful
impingement on the self-organizational rights guaranteed
by the Act to employees 33
The Respondent also contends that Homer and Mrs.
Miller are "supervisors" and not "employees" within the
meaning of the Act, and that therefore their discharge for
engaging in union activities did not violate Section 8(a)(3)
The record in respect to this issue discloses the following."
The Respondent employes about 86 employees at
Letterkenny. About half of them work on the day shift
and the rest work on the night shift Mills is the
Respondent's top official or manager at the depot There
also is a foreman on each shift. Each of the shifts is
divided into 10 crews which have fixed assignments to
perform the janitorial services at specific buildings. There
is a "working leader" or "strawboss" "in charge" of each
such crew.35 The foremen are paid on a salary basis
However, the "leaders" or "straw bosses," like all
admittedly non-supervisory employees, are paid by the
hour for the number of hours actually worked, and are
required to sign in and out at the Company's office at the
depot, at the beginning and end of each workday The
hourly wage rates paid to the leaders or straw bosses vary
from $1 75 to $2.25 per hour The rates for
nonsupervisory employees are from $1.60 to $2 25 per
hour. Each of the straw-bosses or leaders personally
performs janitorial work, and in addition is supposed to
see to it that the work of the other members of the crew is
performed properly .3' However, overall responsibility for
proper performance is vested in the foremen and in Mills,
who inspect the work during regular rounds of the various
buildings on the base. The janitorial work is admittedly
routine and repetitive, and concededly does not require
"much independent judgment."" The working leaders or
straw-bosses have no authority to hire, fire, or to
effectively recommend such action Their asserted
authority "to discipline" is limited to calling an
employee's attention to work improperly performed and
to tell them to correct the defective work 38 The
straw-bosses or leaders make no written or oral reports
"The quotes are from Resp Br pp 12-13
"Contrary to the opinion of Army civilian counsel Kloch, I do not
interpret the words in paragraph 5, "nor will outside persons be admitted
to these premises for such purposes ," to refer to employees such as the
Respondent ' s who come to the base daily to perform services, and thus are
neither "outside persons ," nor persons who come to the base for the
"purposes" of soliciting , canvassing, or peddling Moreover,
notwithstanding his opinion, Kloch obviously did not regard this
Letterkenny regulation as controlling the conduct of Respondent's
employees , for despite the absolute prohibition contained therein against
solicitation anywhere on the base at any time, Kloch testified that whether
the solicitation occurs during work or nonworking time would have a
bearing on whether the solicitation is proscribed or not It is significant in
this regard that Kloch ' s advice to Mills, both before and after the latter
fired Taylor , Mrs Miller and Homer, was based on Mills' statement to
Kloch that Respondent 's employees had solicited on "Company time "
"See cases cited in fn 29, supra
"Unless otherwise indicated, the findings which follow are based on
Mills' uncontroverted testimony which is credited in these respects
"The quotes above and which follow are from Mills' testimony Mills
also testified that the crews vary in size from four to seven persons, but in
the light of the number of crews and of employees on each shift , he quite
obviously must be in error in respect to the size of the crews
"According to Mills, when he designated Mrs Miller as "in charge" of
Building 370 , he told her to spend half her time working and halt in
checking the work of the rest of the crew Mrs Miller denied receiving any
such instruction , and I regard her denial as more reliable than Mills'
contrary testimony
"In the case of Building 370 , the only one where the work assertedly is
more complex , Mrs Miller was given a written list of the work that had to
be performed, and the list never changed
"However Mills admitted that he knew of no case where either Mrs
Miller or Homer had done even this
BARRY INDUSTRIES, INCORPORATED
regarding the work of their crew, do not participate in or
attend the daily meetings between Mills and his foremen,
and enjoy no privileges or benefits not also enjoyed by all
rank-and-file employees If an employee wants time off
for any reason, he must ask the foreman. The
straw-bosses or working leaders have no authority to
grant time off At the time of their discharge, both Mrs.
Miller and Homer worked at an hourly rate of $1.80 per
hour This was only 5 cents per hour more than the rate
of employees they assertedly supervised, and substantially
less than the $2 25 per hour then paid to Taylor, an
admitted nonsupervisor
I conclude from the foregoing record that to the limited
extent that Homer and Mrs Taylor had authority to
assign work to other employees, the exercise of that
authority was purely routine in nature, and did not involve
or require the use of independent judgment. I therefore
find that they were "employees" and not "supervisors"
within the meaning of the Act
Conclusion
In the light of my findings above, I conclude that the
i Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(I) of the Act by the following
conduct:
I By threatening Mrs. Miller and Homer with
discharge on either April 29 or May 6, if they passed out
or solicited union cards on the depot;
2 By coercively interrogating Homer on the same day
regarding the Union and the reasons for Homer's support
thereof,
3. By warning the night shift employees on May 14 that
the distribution of union cards on the depot had to stop;
4 By interrogating employee Stallsworth regarding his
and Homer's union activity;
5 By threatening the day shift employees on May 16
with discharge if they engaged in card distribution or
solicitation on the depot, and
6. By maintaining and enforcing a broad no-solicitation
rule which prohibited employees from engaging in union
activity on the depot during nonworking time 19
I further find that by discharging Taylor, Miller and
Homer for engaging in union and protected concerted
activity, the Respondent engaged in further unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act
The General Counsel contends that the Respondent
further violated Section 8(a)(l) of the Act in June by
virtue of Foreman Ransom's interrogation of employee
Webb as to whether he and other employees signed union
cards. I do not agree The interrogation by Ransom
occurred after the Union claimed majority status and
requested recognition, its purpose was to ascertain the
validity of that claim, and Webb was so informed
Ransom assured Webb that there would be no reprisals
against him Accordingly in the light of Webb's forthright
responses to Ransom, I am not persuaded that this
interrogation was coercive or that it significantly failed to
conform with the Board's standards for lawful
interrogation. 00 Accordingly, I will recommend dismissal
of the complaint insofar as it is based on this
interrogation
"Although the complaint did not allege the maintenance of the
Respondent ' s no-solicitation rule as an unfair labor practice , the validity of
the rule was put in issue by the Respondent 's reliance on it as a lawful
reason for discharging Taylor, Mrs Miller and Homer, and the issue was
fully litigated and briefed by the parties
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
1009
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free now of commerce
V THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having further found that the Respondent
discriminated against Charles J Taylor, Fannie E Miller,
and John E. Homer by terminating their employment and
thereafter failing and refusing to reinstate them because of
their union activities, I will recommend that the
Respondent be ordered to offer them immediate
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination by the payment to each of them of a sum
of money,equal to the amount he or she normally would
have earned from the date of termination to the date of
reinstatement, less his or her net earnings during said
period, with backpay computed on a quarterly basis in the
manner established by the Board 01
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze and determine the amounts of backpay due under
the terms of this recommended remedy.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1. Respondent , Barry Industries , Inc., is an employer
engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act
2 Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3 By discriminating against Charles J Taylor, Fannie
E Miller and John E Homer by terminating their
employment and failing to reinstate them because of their
union activities , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4 By the foregoing conduct, by coercively interrogating
employees regarding their union sympathies and activities,
by threatening employees with discharge for engaging in
protected union activity , and by maintaining and enforcing
'°Cf Blue Flash Express, Inc, 109 NLRB 591, Struksnes Construction
Co , Inc, 165 NLRB 1062
"F W Woolworth Company, 90 NLRB 289, backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a broad no -solicitation rule which prohibits employees
from engaging in protected union activity during
non-working time, the Respondent has engaged in and is
engaging in unfair labor practices of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 6,
after being duly signed by Respondent, shall be posted by
it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith.43
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Respondent, Barry Industries, Inc ,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Discouraging membership in and activities on behalf
of Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other labor
organization of its employees, or in any other manner
discriminating in regard to hire or tenure of employment
or any term or condition of employment
(b) Coercively interrogating employees regarding their
union membership, activities, or sympathies.
(c) Threatening employees with discharge or other
reprisals for engaging in protected union activities
(d) Maintaining in effect or enforcing any rule which
prohibits employees from engaging in union or protected
concerted activities during nonworking time
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from engaging in such activities, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Charles J Taylor, Fannie E Miller, and John
E. Homer, immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and. privileges
enjoyed, and make them whole for any loss of pay they
may have suffered as a result of the discrimination against
them in the manner provided in the section of this
Decision entitled "The Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and determine the amounts
of backpay due under the terms of this Recommended
Order
(c) Notify Charles J Taylor, Fannie E Miller, and
John E Homer if presently serving in the Armed Forces
of the United States of their right to full reinstatement
upon application in accordance with the Selective Service
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
(d) Post at its office at the Letterkenny Army Depot,
Chambersburg, Pennsylvania, copies of the attached
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges violations of the Act other than those
found above
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations,
automatically become the findings, conclusions , decision and order of the
Board, and all objections thereto shall be deemed waived for all purposes
In the event that the Board 's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director for
Region 6, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES .
Posted by order of the National Labor Relations Board
an Agency of the United States Government
After a trial at which all sidds had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
this notice and to keep our word about what we say in
this notice.
The Act gives all employees these rights
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights.
More specifically,
WE WILL NOT discourage union activity or
membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or
any other labor organization, by discriminating against
you if you choose to engage in union activity or join
that union or any other union
WE WILL NOT coercively question you in any way
over the Union
WE WILL NOT threaten you in any way over the
Union.
WE WILL NOT maintain or enforce any rule which
prohibits you from engaging in union activities during
your nonworking time.
BARRY INDUSTRIES, INCORPORATED
Since the Trial Examiner decided that we
discriminated against Charles J Taylor, Fannie E
Miller , and John E Homer for engaging in union
activities , WE WILL offer them full reinstatement to
their former jobs, and WE WILL pay them for any loss
they suffered because we fired them. If they are
presently in the Armed Forces of the United States, we
will notify them of their right to full reinstatement upon
application after discharge from the Armed Forces.
WE WILL respect your rights to self-organization, to
form , join or assist any labor organization, or to
bargain collectively in respect to terms or conditions of
employment through the Union named above, or any
representative of your choice, or to refrain from such
activity , and WE WILL NOT interfere with , restrain, or
coerce our employees in the exercise of these rights,
except insofar as these rights could be affected by a
contract with a union, which may require membership
in the union as a condition of employment after the
1011
30th day following the date of such contract or the
beginning of employment , whichever is later
You and all our employees are free to become members
of any labor organization , or to refrain from doing so.
Dated By
BARRY INDUSTRIES, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1536 Federal Building, 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222, Telephone 412-644-2977