Chun King Sales, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1954

110 N.L.R.B. 1151 (N.L.R.B. 1954)

CHUN KING SALES, INC. 1151
,that this right may be affected by an agreement in conformity with Section 8 (a) (3)
.of the amended Act.
SWISS CHEESE CORPORATION OF AMERICA,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
, be altered , defaced , or covered by any other material.
IC1IUN KING SALES, INC. and FLORAANN KOZLOSKY
LOCAL 1116, RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L.
and FLORAANN KOZLOSKY. Cases Nos. 18-CA-582 and 18-CB-60.
December 3, 1954
Decision and Order
On June 4, 1954, Trial Examiner Max M. Goldman issued his
"Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents, Chun King Sales, Inc., herein called
the Respondent Company, and Local 1116, Retail Clerks International
Association, A. F. of L., herein called the Respondent Union, had
,engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent Company and the
!.Respondent Union each filed exceptions to the Intermediate Report
with a supporting brief. In addition, the Respondent Company and
the Respondent Union requested oral argument. However, because
the record and briefs, in our opinion, adequately present the issues
and positions of the parties, the requests for oral argument are hereby
denied. The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the cases, and hereby adopts the findings, conclusions,
And recommendations of the Trial Examiner, with the exceptions,
modifications, and additions noted below.'
As fully detailed in the Intermediate Report, on January 27, 1954,
following a demand by the Respondent Union for Kozlosky's suspen-
sion from employment, the Respondent Company suspended the com-
plainant. The Trial Examiner found, and we agree, that in taking
this action against Kozlosky, at which time a union-security agree-
1 Member Murdock would affirm the Intermediate Report without change because he
finds it substantially correct and because he believes that the different approach which
Ibis colleagues have taken may raise serious problems.
,110 NLRB No. 185.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment was in effect between the Respondents, the Respondent Company
was acceding to the Respondent Union's demand for her suspension.
Although Kozlosky had been suspended from membership in good
standing in the Respondent Union on January 26, 1954, the record
shows that this suspension, which was the written reason given by
the Respondent Union for its January 27 request, was not due to any
failure on the part of the complainant to tender periodic union dues 2
and that the Respondent Company knew or had reasonable grounds
for believing that this was so when it suspended Kozlosky 1 In these
circumstances it is plain that the Respondent Company suspended
Kozlosky in violation of Section 8 (a) (3) and (1) of the Act, and
that the Respondent Union caused Kozlosky's suspension, in violation
of Section 8 (b) (2) and 8 (b) (1) (A) of the Act 4
In view of all the foregoing, we deem it unnecessary to pass upon
the validity of the Trial Examiner's pretext findings or his alternative
holdings which assume the enforcement by the Respondents of their
collective-bargaining agreement and the Respondent Company's no-
solicitation rule against Kozlosky.
THE REMEDY
As recommended by the Trial Examiner, we shall order the Re-
spondents jointly and severally to make whole Floraann Kozlosky for
any loss of pay suffered by her from January 27, 1954, the date of
the discrimination against her, to March 1, 1954, the date of her
reinstatement by the Respondent Company.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Chun King Sales, Inc., Duluth, Minnesota, its
officers, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in Local 1116, Retail Clerks Inter-
national Association, A. F. of L., or in any other labor organization
of its employees, by discriminating as to its employees in regard to
2 The Respondent Union concedes that Kozlosky was suspended from membership
because of her activities on behalf of a rival union.
3In this connection , for example , we note that (a) the Respondent Company deducts
the union dues of its employees , (b) W. C Olsen , the representative of the Respondent
Company who suspended Kozlosky, testified that at the time of the suspension he had no
reason to believe that Kozlosky was delinquent in her dues , and (c ) it is not contended
that Kozlosky was in fact guilty of any dues delinquency during the critical period
herein
3 Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347
U S 17; United Brotherhood of Carpenters and Joiners of America, Local No. 1281,
109 NLRB 874
CHUN KING SALES, INC. 1153
their hire or tenure of employment or any term or condition of their
employment.
(2) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Local 1116, Retail Clerks Interna-
tional Association, A. F. of L., make Floraann Kozlosky whole for
any loss of pay she may have suffered by reason of their discrimina-
tion against her, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(2) Upon request, make available to the Board or its agents, for
examination and copying, all pertinent records necessary to analyze
the amount of back pay due under this Order.
(3) Post at its offices and place of business in Duluth, Minnesota,,
copies of the notice attached hereto marked "Appendix A." 5 Copies,
of said notice, to be furnished by the Regional Director for the Eiglit--
eenth Region, shall, after being duly signed by the Respondent Com-
pany's representative, be posted immediately upon receipt thereof, and
be maintained by it for a period of at least sixty (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 Company to insure that said notices shall not
be altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Eighteenth Region, in.
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
2. The Respondent, Local 1116, Retail Clerks International Asso-
ciation, A. F. of L., its officers, agents, representatives, successors, and
assigns, shall :
a. Cease and desist from :
(1) Causing or attempting to cause Chun King Sales, Inc., Duluth,
Minnesota, its officers, agents, successors, and assigns to discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
(2) Restraining or coercing employees of Chun King Sales, Inc.,
its successors or assigns, in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
6In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order," the worda
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
338207-55-vol. 110-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion as a condition of employment, as authorized by Section 8 (a) (3)
,of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Chun King Sales, Inc., make Flora-
ann Kozlosky whole for any loss of pay which she may have suffered
by reason of their discrimination against her, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(2) Post at its offices and meeting halls in Duluth, Minnesota, where
notices to members are customarily posted, copies of the notice at-
tached hereto marked "Appendix B." 6 Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by the Respondent Union's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for a period of at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Respond-
ent Union to insure that such notices are not altered, defaced, or
covered by any other material.
(3) Mail to the Regional Director for the Eighteenth Region signed
copies of the notice attached hereto marked "Appendix B," for post-
ing, the Respondent Company willing, at its place of business at
Duluth, Minnesota, in places where notices to employees are custom-
arily posted. Copies of said notice, to be furnished by the Regional
Director for the Eighteenth Region, shall, after being signed as pro-
vided in the preceding paragraph of this Order, be forthwith returned
to the Regional Director for posting.
(4) Notify the Regional Director for the Eighteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
9 Ibtid.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate• the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
VVE WILL NOT encourage membership in Local 1116, Retail
Clerks International Association, A. F. of L., or in any other labor
organization of our employees, by discriminatorily suspending
any of our employees or by discriminating in any other manner
in regard to their hire and tenure of employment, or any term
or condition of employment.
CHUN KING SALES, INC. 1155
WE WILL NOT In any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL make Floraann Kozlosky whole for any loss of pay
suffered as a result of the discrimination against her.
All our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing of the above-named
Union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
CHUN KING SALES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL 1116, RETAIL CLERKS INTERNA-
TIONAL ASSOCIATION, A. F. OF L., AND TO ALL EMPLOYEES OF CHUN
KING SALES, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Chun King Sales, Inc.,
its officers, agents, successors, and assigns, to suspend or otherwise
discriminate against employees in regard to their hire or tenure
-of employment, or any term or condition of employment, in vio-
lation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of Chun King Sales, Inc., its successors or assigns, in the exercise
of their right to self-organization, to form labor organizations,
to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
condition of employment as authorized in Section 8 (a) (3) of
the Act.
EVE WILL make Floraann Kozlosky whole for any loss of pay
suffered as a result of the discrimination against her.
LOCAL 1116, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, A. F. OF L.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed, the General Counsel by the Regional Director for the
Eighteenth Region ( Minneapolis , Minnesota ), of the National Labor Relations
Board, herein called the Board, issued his complaint dated March 2, 1954, against
Chun King Sales , Inc., herein called the Respondent Company, and Local 1116.
Retail Clerks International Association, A. F. of L., herein called the Respondent
Union, alleging that they had engaged in and were engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and ( 1) and 8 (b) (2) and 8 (b)
(1) (A), respectively, and Section 2 (6) and (7) of the Labor Management Rela-
tions Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and
the charge together with notice of hearing and an order consolidating the cases were
duly served upon the Respondent Company, the Respondent Union, and the Charging
Party.
With respect to unfair labor practices, the complaint alleges in substance that
on or about January 27, 1954, the Respondent Union, for the reason of suspension
from membership, caused the Respondent Company to discharge or to terminate the
employment of Floraann Kozlosky in violation of the Act. The answers of the
Respondent Union and the Respondent Company deny the commission of unfair
labor practices.
Pursuant to notice, a hearing was held at Duluth , Minnesota , on March 22 and
23, 1954, before the duly designated Trial Examiner. The General Counsel, the
Charging Party, and the respective Respondents were represented by counsel. Full
opportunity to be heard, to examine and cross-examine witnesses , and to introduce
evidence bearing on the issues was afforded the parties . Counsel for the Respondent
Union presented oral argument at the close of testimony. The General Counsel, the
Respondent Company, and the Respondent Union submitted briefs.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent , a Minnesota corporation , is engaged in the processing and
distributing of American -Chinese foods at Duluth , Minnesota , and employs a normal
complement of about 200 persons . In 1953, the Respondent Company purchased
foodstuffs , packing, and canning materials valued in excess of $1,000,000 , of which
more than 75 percent was shipped to it from points outside the State of Minnesota.
During the same period , the value of the Respondent Company's sales of finished
products was $5,000,000 , of which 85 percent was shipped from its plant, in the
State of Minnesota to points outside the State. It is found that the Respondent
Company is engaged in commerce within the meaning of the Act.
CHUN KING SALES, INC.
II. THE LABOR ORGANIZATION INVOLVED
1157
Respondent Union, Local 1116, Retail Clerks International Association, A. F.
of L., is a labor organization admitting to membership employees of the Respondent
-Company.
III. THE UNFAIR LABOR PRACTICES
A. The events
For the past several years the Respondent Union has represented the Respondent
-Company's employees in collective bargaining. In the middle of January 1954,
some of the employees developed an interest in and engaged in activities on behalf
of the International Brotherhood of Teamsters, hereinafter referred to as the Team-
sters. W. C. Olsen, in charge of labor relations and personnel for the Respondent
Company, learned of these activities from some of the other company officials.
Among the employees who became interested in representation by the Teamsters was
Floraann Kozlosky, an employee of several years of service and the alleged dis-
criminatee here involved.
On January 25 and 26, Elmer M. Foster, business representative of the Respondent
Union, appeared at the plant and informed Olsen that he had reports that there were
several individuals running around the plant engaging in solicitation and complained
that this was in violation of the collective-bargaining agreement and the Company's
rules. Foster explained in his testimony that the Respondent Union had desired to
engage in solicitation but had been denied that privilege and further that he pointed
out to Olsen that he did not like the situation where people were leaving their jobs
to engage in soliciting. Olsen declared that he was unaware of any solicitation.
On the first of these 2 days, Foster named only one employee, Margaret Mulzak,
as having engaged in soliciting and asserting that she was distributing Teamsters'
cards during working hours. Olsen thereafter called Mulzak to his office and con-
fronted her with Foster' s accusations . Mulzak denied having engaged in this conduct.
Olsen accepted Mulzak's denial and nothing further was done as to her.
On the second day, January 26, Foster named in addition to Mulzak, Kozlosky
and employee Mildred Saari as having engaged in solicitation . Olsen made no in-
quiry of either Kozlosky or Saari because he explained at the hearing that he had
no evidence to substantiate the accusations and if the employees had merely engaged
in conversation he did not want anything to do with it. During the evening of
January 26, the Respondent Union suspended Kozlosky from membership in good
standing.
The following day, January 27, Foster again called on Olsen with a letter of that
date on the Respondent Union's stationery, addressed to the Respondent Company,
which read as follows: -
Please be advised that Florann Koslosky [sic] is not in good standing with our
Union, and we demand her immediate suspension.
According to Foster, he told Olsen that this action by the Respondent Company
was sought because Kozlosky had engaged in solicitation and thereby had violated
the Company's no-solicitation rule and the collective-bargaining agreement.' Olsen
declared that he had no knowledge of Kozlosky's conduct in this respect. Foster
stated that he would have affidavits to establish his accusations and demanded Koz-
losky's immediate suspension until he could produce substantiating affidavits. Olsen
thereupon called Kozlosky into the office and without making any independent
inquiry-as was Olsen's practice before taking disciplinary action-informed Koz-
losky that he had a letter from the Respondent Union demanding her suspension and
that she was suspended from employment. Olsen also stated to Kozlosky that her
suspension would be effective until the Respondent Company could get clarification
from the Respondent Union as to the charges and until further action was taken
by the Respondent Company as to her status. Kozlosky asked Foster why she was
suspended from the Respondent Union and Foster replied that she was suspended
on the basis of charges filed by a fellow employee and that she would be notified of
the charges and have an opportunity for a hearing. Foster stated further that if
the charges were not substantiated Kozlosky would be reinstated in the Respondent
Union and would be paid for time losst.
A few days later Foster furnished Olsen with an unsworn statement dated Jan-
uary 29, by employee Aireal Williams, vice president of a division of the Respondent
1 The text of pertinent provisions of the collective-bargaining agreement and the Com-
pany's rules is set forth in the section entitled, "The conclusions 11
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Foster also talked with Respondent 's attorneys about Kozlosky's soliciting,
on company property . The Williams ' statement was the only document which the
Respondent Union supplied to the Company . The statement recites that when Wil-
liams went to the plant on January 22 , to get her check while Kozlosky was on duty,
Kozlosky called to and walked toward Williams and asked Williams to join Kozlosky;
the two thereafter talked at Kozlosky 's place of work in the labeling department,
Kozlosky asked Williams what Williams thought about joining the I eamsters; Koz-
losky stated that they could get a wage increase with the Teamsters ; Williams
declared that she was not interested ; and Kozlosky then stated the girls in the
labeling line were interested and in a few days they were going to start talking to
the other employees.
The record shows the statement represents an accurate portrayal of the event
The distance between the labeling department , where Kozlosky worked , and the
plant office is about 45 feet. The conversation took about 5 minutes. It appears
that although Kozlosky was on duty at the time she was waiting for someone to
place labels in the machine . The record also shows that another employee who was
present with Williams, also to obtain her check , engaged in a conversation unrelated
to labor organizations with still another employee in the labeling department while
the latter was working.
In the middle of February , Kozlosky appeared at an executive committee meet-
ing of the Respondent Union. Sometime prior to this meeting, when Kozlosky and
Foster had talked on the telephone and Kozlosky had indicated a lack of interest
in attending the meeting , Foster had stated to Kozlosky, "You are not very inter-
ested in getting your job back." Kozlosky attended this meeting and admitted having
solicited on behalf of the Teamsters on the job, and Foster admitted that Kozlosky
had been suspended from the Respondent Union for that reason.
Thereafter by letter dated February 17, the Respondent Union advised the Re-
spondent Company that Kozlosky had been reinstated in good standing . The Re-
spondent Company took no action until February 25. Olsen explained , however,
that the delay was because he wanted first to consult the president of the Company
who was then out of town . After the president of the Company read the Respond-
ent Union 's letter of February 17, he told Olsen that so long as the suspension was
lifted that they would call Kozlosky back to work . In explaining the Respondent
Company's decision to return Kozlosky to work, Olsen testified , "Well, it was reached
because we got a letter that she was reinstated in good standing for the violations
that had happened , and that is why we returned her to work , lifted the suspension."
Olsen testified also that he and the president decided that sufficient disciplinary action
had been taken.
By letter dated February 25, the Respondent Company advised Kozlosky that
the Respondent Union had notified the Company that she had been reinstated in
good standing, that her suspension with the Company was accordingly discontinued,
and that she should report to work on March 1.2 Kozlosky did resume employment
on that date doing her usual work and reassumed such seniority rights as she had
prior to her suspension.
It was developed during the course of the hearing that prior to her suspension
Kozlosky not only contacted about 50 employees on behalf of the Teamsters at
the plant during nonworking time, but, in addition to talking to Williams, as al-
ready described-the incident upon which the Respondent Union and Company
proceeded-also during working time talked in furtherance of the Teamsters to 6
or more other employees in the labeling department , some of whom worked by
her side. Kozlosky did not have any Teamsters ' cards with her at the plant. It
appears that the Teamsters ' union was a topic of conversation at the plant. It
appears also that there have been 1 or 2 occasions in the past year when with
Olsen's permission the president of the Respondent Union obtained from new em-
ployees their signatures to membership and dues deduction authorization cards
during the union president's working time or the working time of the other employ-
ees. Employees have been solicited by the Respondent Company during working
time for such civic fund raising drives as the Red Cross and the Community Chest.
2 The body of the letter follows :
CHUN KING has now received a letter from the Retail Clerks Union Local 1116
A. F. L. notifying us that you have been reinstated in good standing , and a copy of
their letter to the National Labor Relations Board notifying it of the release of
your suspension.
Your suspension by CHUN KING is accordingly discontinued immediately . Please
report to work at the plant to resume employment on March 1 at 7 00 A. Al.
CHUN KING SALES, INC. 1 159
There have also been a few occasions when employees have been solicited during
working hours to contribute for flowers for certain funerals or similar situations.
B. The conclusions
The complaint alleges that on or about January 27, 1954, the Respondent Union
in violation of Section 8 (b) (2) and 8 (b) (1) (A) caused the Respondent Com-
pany to discharge Kozlosky for the reason that she had been suspended from mem-
bership in the Respondent Union although such suspension had not resulted from
her failure to tender the periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership in the Respondent Union. The com-
plaint further alleges that on or about the same date , the Respondent Company in
violation of Section 8 (a) (3) and 8 (a) (1) terminated the employment of Kozlosky
at the request of the Respondent Union , although she had paid her periodic dues
and initiation fees uniformly required as a condition of acquiring or retaining mem-
bership in the Respondent Union. The complaint does not allege any independent
violations of Section 8 (a) (1) or 8 (b) (1) (A).
The Respondent Union concedes that Kozlosky was suspended from membership
in good standing because of her activities among the employees of the Respondent
Company on behalf of a rival labor organization , the Teamsters . The Respondents
urge that each acted independently and that each acted for proper reasons, the
Union suspending Kozlosky from membership in good standing for the dual unionism
just mentioned , and the Company suspending Kozlosky from employment for the
reason that the Union brought to the Company 's attention that Kozlosky was
violating both the collective -bargaining agreement and the Company 's no-solicitation
rule. The General Counsel , on the other hand, contends that the reasons offered
are pretexts.
The provisions of the collective -bargaining agreement which relate to the contro-
versy appear under the title, Union -Management Relationship , and read as follows:
The Employer recognizes the established rights, responsibilities and values of
the Union and has no objection to its employees becoming members of the
Union, responsible in conjunction with the Employer for making and keeping
this Agreement . The Employer will not tolerate on the part of its representa-
tives any discrimination or activity whatsoever against the Union and will
discipline any employee who, on the Employer's time, carries on anti-union
activity or who seeks, directly or indirectly , to interfere with the status, mem-
bership or responsibilities of the Union.
The Union agrees to do all in its power to discourage and prevent any
irregular interruptions in the efficient operation of the Employer 's business and
agrees that the Employer has the right to take appropriate disciplinary action
against any employee or employees participating in or responsible for such
interruptions . Any complaints as to the propriety of any disciplinary action
taken by the Employer in such cases shall be taken up through the grievance
procedure outlined herein.
The Respondent Company's posted rules regarding solicitation which announce
that violation is cause for dismissal or other disciplinary action provide that:
No solicitation by anyone for any purpose will be permitted during working
time or any place in the plant or on company property where work is being
performed . No solicitation which in any way interferes with plant production
or efficiency will be tolerated.
It is found that although Kozlosky had no Teamsters ' cards with her at the plant
and merely asked Williams what Williams thought about the Teamsters and men-
tioned a possible wage increase through the Teamsters , that Kozlosky's activities,
when viewed with the other circumstances , constituted solicitation in violation of
both the contract and the rule . Kozlosky, who engaged in widespread activity on
behalf of the Teamsters among the Respondent Company's employees , left her
place of work to do more than engage in idle conversation . Kozlosky spoke to
Williams for the purpose of interesting Williams in the Teamsters but was unsuccess-
ful because of Williams ' declared opposition to that organization. It is further found
that Kozlosky knew or should have known of the Respondent Company's posted
rule against solicitation.
With reference to the motivation issue-whether the Respondents ' respective ex-
planations of independent action are pretexts-the Respondent Union admittedly
suspended Kozlosky from membership in good standing because of her activity on
behalf of the rival labor organization . The Respondent Union in opposing rival
organization made complaints to the Respondent Company of violations of the
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract and the no-solicitation rule under which the Respondent Company was
expected to take disciplinary action . The Respondent Union explains that in doing
so it was merely seeking uniform enforcement of the contract and the rule because
it was not permitted to engage in soliciting during working hours. The record, how-
ever, shows that there had been occasions , although they were few, when the Re-
spondent Union's president with the Respondent Company's consent had solicited
membership in the Respondent Union during her own or the other employees' work-
ing time , in violation of the rule and contract . The day after the Respondent Union
suspended Kozlosky for rival union activity it wrote the Respondent Company
advising that Kozlosky was not in good standing and demanding her immediate sus-
pension from employment It is therefore concluded that the Respondent Union,
in demanding the immediate suspension of Kozlosky and in making complaints of
violations as to other employees it believed had also engaged in rival activities, was
seeking not uniform but disparate enforcement of the contract and the rule for its
own benefit and to the detriment of rival organization and was urging the violations
merely as a pretext to bring about the disciplining of employees engaged in dual
unionism.
Kozlosky, an employee of several years' standing with the Respondent Company,
has had her dues checked off by the Respondent Company since her hiring pursuant
to a written authorization and there is no contention that she was delinquent in her
dues. There appears to be no question that the Respondent Company knew from
the course of Foster 's complaints of solicitation in which Kozlosky was named among
others that the Respondent Union's underlying objection was that the activity was
on behalf of the Teamsters . It is thus found that the Respondent Company knew
or had reason to believe that Kozlosky's membership in good standing in the Re-
spondent Union was suspended or temporarily terminated because of her activities
among the employees on behalf of the Teamsters and not for any matter relating to
dues or fees . If the Respondent Company entertained any doubt at the time of
Kozlosky's suspension from employment , the doubt was removed a few days later
when it received the Williams ' statement which made it perfectly plain that the
Respondent Union was relying upon Kozlosky's activities on behalf of the Teamsters
and the Respondent Company did not then do anything to restore Kozlosky's
employment.
The Respondent Company is shown to have yielded control over Kozlosky's em-
ployment relationship to the Respondent Union and to have suspended her be-
cause the Union so requested by (1) suspending Kozlosky immediately upon the
Union's demand without so much as informing her of the charges and asking her
or any of the other employees about the matter, when it was Olsen 's practice to
investigate alleged violations of the rules before taking disciplinary action, (2) in-
forming Kozlosky that she was suspended from employment until the Respondent
Company could get clarification from the Respondent Union as to the charges,
(3) not reemploying Kozlosky until after the Respondent Union declared Koz-
losky to be in good standing , (4) deciding to reemploy Kozlosky admittedly, at
least in part, because the Respondent Union had " lifted" the suspension , and (5)
in notifying Kozlosky to report for work after reciting that the Respondent Union
had reinstated her in good standing and that her suspension from employment was
"accordingly" discontinued.
The no-solicitation rule and the contract, as already mentioned , were not uni-
formly enforced against the Respondent Union in its activities as was shown by
the solicitation engaged in by the Respondent Union's president with the Respondent
Company's consent. The Respondent Company itself did not adhere to its no-
solicitation rule on such matters as civic drives and certain personal situations aris-
ing among its employees
It is accordingly found that Kozlosky's violation of the no-solicitation rule and
the contract was not the cause but a pretext for the Respondent Company's sus-
pension of Kozlosky at the Union 's request . It is further found that the Respondent
Union caused the Respondent Company to suspend or temporarily terminate Koz-
losky's employment on January 27, 1954, because of dual unionism.
The General Counsel urges in the alternative, in the event the pretext analysis
of the case should not prevail , that Kozlosky was discriminated against in violation
of the Act by disparate enforcement of the no-solicitation rule. The Respondents
defend their conduct in suspending Kozlosky on the basis of the no-solicitation rule
urging that the rule is valid and proper . The rule quoted in full above prohibits
solicitation ". . . during working time or any place in the plant or on company
property where work is being performed." [Emphasis supplied.] The rule is writ-
ten in the disjunctive and hence prohibits solicitation "any place in the plant," and
in each of the other instances described . In view of the next instance described
prohibiting solicitation "on company property where work is being performed,"
CHUN KING SALES, INC. 1161
the term "plant," when used in the instance involved, is found to be equivalent to
prohibiting solicitation anywhere or in any part of the plant facilities including non-
working areas In this respect the rule as promulgated, although not so enforced
as for example in the cafeteria where solicitation was permitted, is too broad thus
placing an unreasonable restriction on self-organization and hence invalid. It ap-
pears moreover, as shown by the treatment accorded the president of the Respondent
Union in contrast with treatment accorded Kozlosky, that the rule was enforced
to the advantage and assistance of the Respondent Union and to the disadvantage
and detriment of the rival union although both individuals solicited in working areas
on working time. In view of the limitation on self-organization in the rule itself
and the disparate enforcement of the rule, the Respondents can find little comfort
in the defense that Kozlosky was suspended from employment under the no-solicita-
tion rule.3
The Respondents stand in no better position in their further defense that Koz-
losky was suspended from employment pursuant to the collective-bargaining agree-
ment. All of the related provisions of the agreement have already been given.
The pertinent parts of the specific provision directly involved is repeated here:
"The Employer . will discipline any employee who, on the Employer's time,
carries on antiunion activity or who seeks, directly or indirectly, to interfere with
the status, membership or responsibilities of the Union." The effect of this provi-
sion, although in practice it was not carried out during nonworking time such as break
periods, is to prohibit self-organizational activities during employees' nonworking
time such as luncheon and rest periods and in that respect would be invalid.4 This
provision also by implication does not prohibit activities by employees on behalf
of the Respondent Union during the Respondent Company's time while it expressly
forbids such activities against the Respondent Union. In practice this interpretation
was demonstrated to the employees as beng correct as shown by the Respondent Com-
pany's permitting the president of the Respondent Union to solicit on behalf of that
organization during working time and prohibiting solicitation on behalf of a rival
union by suspending Kozlosky from employment for her activity 5
It is accordingly found that by Floraann Kozlosky's temporary termination or
suspension from employment on January 27, 1954, the Respondent Union violated
Section 8 (b) (2) and thereby Section 8 (b) (1) (A), and that the Respondent
Company violated Section 8 (a) (3) and thereby Section 8 (a) (1) of the Act.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondent Company described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdenine and
obstructing commerce and a free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated the Act, the Trial Examiner
shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. The Trial Examiner will thus
recommend, among other things, that the Respondents, jointly and severally, make
Floraann Kozlosky whole for any loss of pay suffered by reason of the discrimina-
tion against her, by payment to her of a sum of money equal to that which she would
have normally earned from January 27, 1954, the date of the discrimination aeainct
8 See Republic Aviation Corp v N L R. B, 324 U. S 793, 805.
4 See N. L R B v Monarch Machine Tool Co, 210 F. 2d 183, 187 (C A. 6), cert de-
nied 347 U. S. 967
5 Relying upon (1) the contract provision quoted above relating to antiunion activities
or activities on behalf of a rival organization on the Respondent Company's tune which
was found not to have been the cause but a pretext for the suspension, and (2) testimony
by the Respondent Union's president that it was her practice in accordance with her inter-
pretation of the contract-which in another provision requires new employees to report
to the Respondent Union's office within 24 hours after hire-to inform new employees that
there is a closed shop requiring them to join the Respondent Union within 24 hours, the
General Counsel asserts for the first time in his brief that the Respondents have thereby
been engaging in independent violations of Section 8 (a) (1) and 8 (b) (1) (A). The
complaint, as already noted, does not allege any independent violations of this section
of the Act. No amendment of the complaint was made at the hearing. No notice was
otherwise given the Respondents that reliance would be placed upon these matters to
support such allegations. The Trial Examiner will accordingly make no findings in these
respects.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her, to March 1, 1954, the date of her reemployment by the Respondent Company,
less her net earnings during this period. Back pay shall be computed in accord-
ance with the formula stated in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1116, Retail Clerks International Association, A. F. L., is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Floraann
Kozlosky, thereby encouraging membership in the Respondent Union, the Respond-
ent Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
3. By causing the Respondent Company to discriminate against Floraann Kozlosky
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (b) (2)
and 8 (b) (1) (A).of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
SEARS ROEBUCK AND COMPANY and SEARS ROEBUCK EMPLOYEES
COUNCIL LOCAL 1635, RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL. Cases Nos. 1-CA-1562 and 1-CA-1577. December 3, 1954
Decision and Order
On July 16, 1954, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices with respect to the discharge of Roy W. Webber and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in any unfair labor practices alleged in the com-
plaint with respect to the discharge of Bernice R. King and recom-
mended that such allegations be dismissed. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sears Roebuck
11.0 NLRB No. 187.