Central Ohio Welding Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 960 (N.L.R.B. 1985)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C.O.W. Industries, Inc., Division of Central Ohio
Welding Co . and Sheet Metal - Workers' Interna-
tional Association, Local Union 287 , AFL-CIO.
Case 9-CA-19453
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN -
On 23 April 1984 Administrative Law Judge
Hubert E. Lott issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
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, and
conclusions -and to adopt the recommended -Order
as modified'-
We agree with the judge that the Respondent's
rule as set forth in its Statement of Operating
Policy has the ."potential dual effect of encouraging
employees to report the identity, of union solicitors
who in any way approach employees in a manner
subjectively offensive to the solicited employees
and of correspondingly discouraging union solici-
tors in' their protected organizational activities."
The language contained in the ' Respondent 's rule- is
virtually identical to-'the language found objection-
able by the Board in J. H. Block & Co., 247 NLRB
262 (1980). -
We also find merit' in the Charging Party's- con-
tention that the Respondent 's -rule prohibiting solic-
itation on the job is invalid on its'face because it is
directed , solely against union solicitation ., The rule
flatly states: "No person ,will be ' allowed to solicit
or carry on union organizing activities on the job."
Inasmuch as the rule unlawfully restricts union ac-
tivity, we find it unnecessary to determine whether
the limitation while "on the job" is overly broad
and impermissible under the standards established
in Essex International ,' 211 NLRB 749 (1974),- and
Our Way, 268 NLRB 394 (1983).
ORDER
The National Labor Relations Board adopts the
recommended 'Order of the administrative law
judge as modified` below and orders that the Re-
spondent, C.O.W. Industries, Inc., Division of Cen-
tral Ohio Welding Co., Columbus, Ohio, its offi-
cers, agents, successors , and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) Issuing and maintaining rules discriminatori-
ly prohibiting union solicitation or.distribution of
union material."
2. Substitute the attached notice for that of the
administrative law judge. -
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 ordered us -to, post, and abide by this notice.
WE WILL NOT issue rules discriminatorily prohib-
iting union solicitation or distribution of union ma-
terials. .
WE WILL NOT notify our employees in the em-
ployees' 'handbook or otherwise that they 'should
inform 'us if they are put under pressure to join the
Union.
WE WILL NOT otherwise invite or encourage our
employees to report to us the identity of union, so-
licitors.'
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise 'of =the
rights guaranteed you by Section 7 of the Act.
WE WILL correct the passages in our handbook
entitled - "Statement of Operating Policy" to con-
form with the directives set forth above. . '
C.O.W. INDUSTRIES, INC., DIVISION
OF CENTRAL OHIO WELDING CO.
Linda B. Finch, Esq., of Cincinnati;, Ohio, for the General
Counsel.
Stuart M. Gordon, Esq. and Ronald Linville, Esq., of`Co.
lumbus , Ohio, for the Respondent. : `
Benjamin Segel, Esq. (Topper, Alloway, Goodman, 'De-
Leone and Duffey), of Columbus, Ohio, for the-Charg-
_ing Party.'
DECISION
STATEMENT OF THE CASE
HUBERT E . LoTT, Administrative Law Judge. This
case was tried at Columbus , Ohio , on June 27, 1983, on
an unfair labor practice charge filed on. March 18, 1983,
by Sheet Metal Workers, International Association,
Local Union 287 , AFL-CIO (the Union) against .C.O.W.
Industries , Inc. (Respondent) and on the complaint issued
by the General Counsel on April 26, 1983.
The, issue in this case whether -or not Respondent's
"Statement of Operating Policy" contained in an em-
ployee handbook violates Section 8(a)(1) of the Act.-
276 NLRB No. 101
11 1
COMA - INDUSTRIES
1-, .
The parties were afforded the opportunity to be heard,
to call, to examine and cross-examine witnesses, and to
introduce relevant evidence . Since the close of hearing,
briefs have been received from the parties in this -case.
Ori the entire record Wand based on my observation of
the witnesses and. in consideration of the briefs submit-
ted, I make the following
FINDINGS OF FACT -
1. JURISDICTION - '
Respondent is an Ohio corporation engaged in the fab-
rication of steel panels at its facility in Columbus,'Ohio.
It annually, in the course and conduct of its business,
purchases goods and services in excess of $50 ,000 which"
it receives directly from points outside the State of Ohio.
Respondent admits, and I fmd , that the Company is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union
is labor organization within the meaning of, Section 2(5)
of the Act. ...
II. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel offered into evidence . an employ-
ee handbook which was issued to all employees in Octo-
ber 1982 and thereafter to all new employees . The hand-
book was issued during a union organizing campaign;
however, Respondent presented evidence that although
its "Statement of Operating Policy" is contained in the
handbook , it has been company policy since 1971 and
has never been enforced.
The only issue in this case centers around section 3 of
the employees ' handbook which is entitled "Statement of
Operating Policy" which reads as follows:
This company is a non-union Company and as
such an employee deals directly with management
without a third party to represent or speak for you.
It is not necessary and is not ever going to be nec-
essary for. you or anyone else to belong to' any
union in order to work at this plant.
This Company has always tried , to deal fairly
with its employees in every way to provide-every-
thing that goes to make up a good job for any em-
ployee who sincerely and honestly deserves such an
opportunity.
We are convinced that our employees . prefer to
deal directly with us rather than through a Union.
We are also convinced that wherever there are
unions there is trouble, strife and discord and that a
union would not work to our employee 's benefit but
to their serious harm . In view of this, it is our posi-
tive intention to oppose unionism by, every.-proper
- means . It is quite possible that from time to time
you may be approached by union representatives in
an effort to sell you their wares and encourage you
to join up with them.
Since the union usually makes many false prom-
ises and many claims as well' as distorts the facts on
business , profits and virtu ally' everything else affect-
ing you and us , we are sure our employees would
rather get their information directly from manage-
'961
ment and to get the whole truth which we always
intend to give you . Therefore, if and when you are
so approached we would appreciate your seeking
the advice , counsel and information from your su-
pervisor or any question you may have on this sub-
ject.
It is also important for you to keep in mind that
those who might join or belong to any union are
not going to get any advantages or any preferred
treatment of any sort over those who do not join or
belong to a union . Also if anybody causes you any
trouble at work or puts you under any sort of pres-
sure to join a union you should let the Company
know and we will see that this is stopped. No
person will be allowed to solicit or carry union or-
ganizing activities on the job . Anybody who does .
so and who thereby neglects his own work or inter-
feres with the work of others will be subject to dis-
charge.
Analysis and Conclusions
`The General Counsel and Charging Party argue that
the language in the statement wherein the employees are
directed ' to report anyone who causes them trouble' or
puts them under any sort of pressure to join the Union is
virtually the same language the Board found to be a vio-
lation of Section 8(a)(1) of the Act in J. H. Block & Co.,
247 NLRB 262 (1980). I agree . The language in Re-
spondent's statement like the language in Block . has the
potential dual effect of encouraging employees to report
the identity of union solicitors who in any way approach
employees in a manner subjectively offensive to the so-
licited employees and of correspondingly discouraging
union solicitors in their protected organizational activi-
ties.
The General Counsel and Charging Party argue that
no-solicitation language forbidding any union solicita-
tions on the job is overly broad , ambiguous, and reason-
ably susceptible to interpretation by employees that they
are prohibited from engaging in protected -activity during
periods when their soliciting should be protected citing
Republic Aviation Corp. v NLRB, 324 U. S.- 793 (1979),
and Essex International Wire, 211 NLRB 749 (1974).
Charging Party further argues that the handbook's re-
striction of solicitation is not general in nature, but is
aimed solely at, union solicitation:
I ' agreed with the General Counsel and Charging
Party that the words "on the job" is a blanket restriction
which is so imprecise that it does not lend itself to any
reasonable interpretation . This is especially true when
Respondent does not indicate with any degree of clarity
when and where employees may solicit without fear of
violating company - rules . For example, the rule could
mean that solicitation is prohibited any where in the
plant at any time or it could mean something else. For
these reasons, I fmd that Respondent's rule prohibiting
solicitation "on the job" is presumptively invalid: Re-
spondent argues that their rules should not be found vio-
lative of the Act because they have never been enforced.
I fmd this argument to be unpersuasive when the entire
context of Respondent's statement is read in its, entirety.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent couples a strongly worded antiunion position
with a directive prohibiting solicitation for the Union on
the job and an instruction to report anyone who is en-
gaging in such conduct to the displeasure of any other
employee. I would suggest that all of these admonitions
probably would not require any enforcement because
they inherently have an inhibiting effect on lawful orga-
nizational activities. Permanent Label Corp., 248 NLRB
118 (1980). Accordingly, I find that Respondent's "State-
ment of Operating Policy" violates Section 8(a)(1) of the
Act where indicated above.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
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. Respondent has violated Section 8(a)(1) of the Act
by issuing and maintaining an overly broad no-solicita-
tion rule and by issuing and maintaining a directive
which invites or encourages employees to report to Re-
spondent the identity of union solicitors.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and take
affirmative action necessary to effectuate the purposes of
the Act and to post appropriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, C.O.W. Industries, Inc., Division of
Central Ohio Welding Company, Columbus, Ohio, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Notifying employees in the employees' handbook
or otherwise, that they should inform Respondent if they
are put under pressure to join the Union, or otherwise
inviting and encouraging employees to report to Re-
spondent the identity of union solicitors.
(b) Issuing and maintaining rules prohibiting union so-
licitors or distributions of union material on the job with-
out affirmatively and clearly specifying the time and
place that employees may lawfully engage in such activi-
ties.
(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) Correct the passages in Respondent's handbook en-
titled "Statement of Operating Policy" to conform with
the directives set forth above.
(b) Post at its facilities in Columbus, Ohio, copies of
the attached notice marked "Appendix."2 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(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.
i 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.
2 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."