Clougherty Packing Co.

National Labor Relations Board - Board Decisions

Sep 6, 1979

244 N.L.R.B. 901 (N.L.R.B. 1979)

CLOUGHERTY PACKING ('OMPANY
Clougherty Packing Company and Andrea Lynn Hol-
man. Case 21 CA 17420
September 6, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.I.()
AND TRUESDAI.E
On July 11. 1979, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provision of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief,
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Clougherty Packing
Company. Vernon, California. its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINs, Administrative Law Judge:
This case case was heard before me in Los Angeles. Califor-
nia, on May 1, 1979. The charge was filed by Andrea Lynn
Holman. an individual, herein called Holman, and served
on Clougherty Packing Company, herein called Respon-
dent, on January 4 1979. The complaint, issued on Febru-
ary 12, 1979, alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended,
herein called the Act.
The principal issue herein is whether Respondent, in vio-
lation of the Act. orally promulgated to employees, and
enforced an overly broad no-solicitation, no-distribution
rule which prohibits solicitation during nonworking time
and the distribution of union literature by employees dur-
ing nonwork times and in nonwork areas of Respondent's
facility, including. but not limited to. the employee lunch-
room and employee locker room area.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
General Counsel's oral argument and the brief filed by Re-
spondent. I make the fllosing:
FNI)IN(iS Of 1:F( I
I. J RISI)I( I ( )N
Respondent. at all times material herein. has been en-
gaged in the operations of a meatpacking plant in Vernon.
California. Respondent, in the course and conduct of said
business operations, annually sells and ships goods and
products valued in excess of $50,000 directly to customers
located outside the State of California and annually pur-
chases and receives goods and products valued in excess of
$50,000 directly from suppliers located outside the State of
California.
The complaint alleges, Respondent admits, and I find
that Respondent is. and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 22). (6).
and (7) of the Act.
II. tl Al.l.(;F)D NI-NAIR l.ABOR PRA( I IS
A. Facts
Respondent's employees are represented by Butchers Lo-
cal 563, herein called the Union. The current collective-
bargaining agreement between the Union and Respondent
provides that certain job openings be posted and that se-
niority be considered in filing these vacancies.'
By November 1978,2 some of Respondent's employees
had become concerned with what they considered to be
Respondent's failure to abide by the seniority and job post-
ing provisions of the collective-bargaining agreement. and
the Union's apparent acceptance of Respondent's interpre-
tation of the contract. Several unit employees complained
to the Union and to Respondent that Respondent was not
abiding by the seniority provisions of the collective-bar-
gaining agreement. At least one or two employees filed for-
mal grievances with the Union.
Employee Patrice Drolet testified, without contradiction.
that with regard to the grievance filed by her. union repre-
sentatives reported to her that they had talked to Respon-
dent and Respondent's position was that this was a matter
to be determined during contract negotiation, and that
since negotiations were coming up, they did not want to
submit the matter to arbitration because the possibility of a
favorable decision was uncertain. At one point, union rep-
resentatives began refusing to accept grievances as to se-
niority because there were too many such grievances. Sub-
sequently, after complaints were voiced in a union meeting
in December. the Union's chief executive officer instructed
union representatives to accept all grievances.
William Regan, Respondent's director of personnel and
employee relations. testified that in December 1978 or
I The collective-bargaining agreement is not in the record It is undisputed
that the agreement contains such provision. hut the testimony varie, as to
what jobs must be posted and the extent to which seniority applies.
2 All dates herein are in 1978. unless otherwise indicated.
244 NLRB No. 145
901
I)2l('ISI()NS ()F NATIONAL LABOR RELAI IONS BOARD
January 1979 union business agents spoke to him about
grievances regarding seniority. he grievances concerned
the half-pound and 5-pound sausage lines' the posting of
jobs and job placement. hey discussed the fact that Re-
spondent did not post zero-bracketed jobs. Zero-bracketed
jobs receive the lowest wage rate. ('ertain classifications
range from I to 22 brackets. tEach bracket adds 5 cents an
hour to the wage rate. According to Regan, the union repre-
sentatives agreed with him that Respondent never had
posted, and vlas not required to post, zero-bracketed job
openings, hut are required by the collective-bargaining
agreement to post bracketed jobs. The grievances con-
cerned failure to post zero-bracketed jobs. The union repre-
sentatives did not testify,.
According to Drolet, the employees consider the five-
pound lines less desirable than the half-pound line and con-
sider that a transfer to the half-pound line is a promotion.
Partially this is because the work is not as strenous and.
although not absolutely clear from the record, another rea-
son appears to be that there are bracketed jobs on the half-
pound line, and thus, more opportunity for training to pre-
pare one for bracketed jobs. It is undisputed that according
to the contract, promotions are based on both ability and
seniority.
Several unit employees are members of an organization
called National United Workers Organization, herein re-
ferred to as NUWO. It is an organization comprised of
employees in various industries, some of whom are repre-
sented by various labor organizations and some of whom
have no collective-bargaining representative. NUWO does
not represent any bargaining units and does not negotiate
with employers. In November several of Respondent's em-
ployees in the meat section of NUWO drafted a leaflet and
petition regarding certain alleged violations by Respondent
of the seniority provision of the collective-bargaining agree-
ment. There is no evidence that NUWO ever attempted to
meet with Respondent.
In late November, several employees, including Drolet
and Holman, distributed leaflets in front of Respondent's
plant and in the break room' during lunch and coffee break
periods. The leaflet states inter alial.
FIGHT THE ATTACKS AGAINST SENIORITY
We workers in the sausage and bacon departments
at Farmer John are facing sharp attacks around senior-
ity. The company continues to refuse to post job open-
ings in slicing and 1/2 pound, where several perma-
nent vacancies have occurred in past months-in fact
jobs have never been posted in the sausage department!
They promote whomever they choose when it comes to
advancement and preferential placement, and they
have refused to train workers from 5 pound who have
seniority this is a direct violation of our contract.
Five pound ref rs to the line where sausages are packed in 5-pound
packagFive pound refers to the line where sausages are packed in h-paund
packages. Half pound refers to the line where sausages are packed in half
pound packages.
I The break room is a nonwork area containing employees' lockers, vend-
ing machines, a bathroom, and some sinks. It is used primarily by employees
for changing clothes and eating lunch.
Where does our union leadership stand in all of this'?
Beside us workers fighting for our seniority rights'?
NO! The union officials including our shop steward
keep giving us the compan>'s position, how the com-
pany interprets the contract which is in their interest
completely! They say, don't raise such a fuss! It isn't
that bad. What this really means is that our union
leadership is standing squarel with the company
against us. They tell us not to fight back and not to file
grievances because they have a bedroom relationship
with the company and don't want us pulling the covers
ofT'. Well, since when has going along with the com-
pany freed us from their abuses?
Faced with all this we can see clearly that we must
take a fighting stand. We're not going to be harassed,
hounded for overtime, robbed of our seniority rights,
or treated like slaves. Instead of accepting the narrow
limits thev set for us, we're going to mobilize and
strengthen our ranks, turn our righteous anger against
the company where it belongs, and in spite of the
union's refusal to allow a number of people to file
grievances last week for the many seniority violations,
we are going to continue to fight. A petition will be
taken out to people to sign to let the company and
union know that we intend to fight for seniority. We
must and we can stand together to fight every attack
Farmer John levels against us.
This leaflet is put out by the Meat Section of the
National United Workers Organization. The N UW()
is made up of workers from many industries coast to
coast. We believe working people need to unite to lead
the fight against all oppression. For more information
call 213-585 8234.
At about the same time and in the same locations, em-
ployees solicited signatures of fellow employees to a peti-
tion which stated:5
The company is blatantly attacking our seniority
rights and attempting to take back the gains we as
workers have made over the years. They are trying to
use favoritism vs seniority in order to drive a wedge
between us and destroy our unity and ability to fight
back.
We protest these actions and demand that the com-
pany abide by seniority in advancement and preferen-
tial placement in sausage and all departments. We op-
pose the company's position that seniority only applies
to bracket jobs and we demand our union stand behind
us 100% in our fight.
During the week of December I I. Drolet was instructed
to report to the office. When she arrived. William Regan.
director of personnel and labor relations and an admitted
supervisor, his secretary. and three other employees were
present. Regan said he had called Drolet into the office to
tell her not to circulate any literature, that she seemed to be
the one most openly and actively distributing the literature.
Drolet asked if he was referring to the seniority petition.
Regan said yes. He also said that Drolet was not allowed to
circulate any literature within the plant, that it was Cloug-
I Both the leaflet and the petition also were written n Spanish.
902
CILOUGHERRT Y PACKING COMPANY
herty's property, and that they were to say what was to he
distributed and what was not. He said the other employees
present in the office were bothered by the literature, and he
was not going to permit it. Regan asked if Drolet under-
stood what he was saying. Drolet said she did understand.
that she had not even asked two of the three other employ-
ees present to sign the petition, that she respected their right
to disagree with it, hut she also felt that she had a right to
circulate the petition and to talk to other employees regard-
ing seniority and other things that affected them. Regan
said she did not have the right to circulate literature in the
plant: it was Respondent's property.
Drolet said the Union had told her that there had been a
court case and that employees did have the right to circu-
late literature in nonwork areas, and that Respondent was
supposed to post some kind of notice to that effect. Regan
said that was not the case. Drolet said the Union had men-
tioned it to her, as had other employees. Regan asked i'she
had a copy of that decision. She said no. Regan said it'
Drolet felt her rights were being violated, she should file a
charge with the National Labor Relations Board.
Drolet asked if he was objecting to the circulation of the
petition because he did not like what it said or if he meant
that nothing could be circulated at all. Regan said nothing
could be circulated. Drolet asked whether that meant that
anyone circulating an Avon Bookletb or any other kind of
literature would be called into the office and told not to do
so or was he just discriminating against Drolet because he
objected to the contents of what she was circulating. Hle did
not answer. Drolet repeated this question several times, but
Regan never answered.
Drolet mentioned that Regan had said he was the one to
whom employees should come if they had problems with
seniority. She said she had come to him several times: he
had said he was going to do certain things but they were not
done. Regan said that was because she was wrong each
time. Drolet said that was not what he said at the time.
Regan said Drolet would never get out of 5 pound. Drolet
said, "Are you saying that because I am bringing forward,
you know, talking about these problems that you are saying
you are not going to allow me to discriminate against me."
Regan said. "Well, if you ever do get out of five pound, it
will only be because of seniority."
Drolet said quite a few people had signed the petition.
Regan said as far as he was concerned they could sign peti-
tions until hell froze over and it would not make any differ-
ence to him. Regan asked if she had written the Communist
Party at the top of the petition. Drolet said no. that was not
the purpose of the petition, and that people united around
the petition because they were concerned about seniority.
Regan said Drolet was not to distribute any more literature
and asked if she understood. She said she understood what
he was saying, but that she disagreed with him.'
Holman testified that during the week of November 27.
which was about a week after she. Drolet, and some other
' Drolet and Holman testified that Avon Booklets were distributed in the
plant, and notices of various sporting and social events were posted.
l The account of this conversation is from the undenied testimon) of Dro-
let, whom I credit.
employees distributed the petition and leaflets. Regan spoke
to her in the timeclock area. He said she was not to hand
out anything on Respondent's premises. in the locker room.
the lunch area, or the courtyard area. Holman said she be-
lieved she had a right to do so, that she would look into it.
read the contract or whatever. Regan said Holman did not
need to look at the contract, that he was telling her she did
not have the right to hand out anything in the locker room
or the lunch area, that there was a bulletin board that was
axailable for official union business. hut that he did not
regard an, of her communist literature to he oftlcial union
business. Ilolman said she %would check into it.'
B. ('onclu ion.
Respondent contends that the nature of its no-solicila-
tion, no-distribution rule is immaterial since the distribution
herein involves activity outside the protection of the Act. I
do not agree. Although particular incidents of solictation
and distribution gave rise to Regan's statement of Respon-
dent's rule. Drolet specifically inquired if the prohibition
was announced because of the contents of the material di-
tributed or if he meant that nothing at all could he circu-
lated. Regan said nothing could be circulated. Regan spe-
cificall, referred to the petition, so it is clear that the
prohibition encompassed solicitation as well as distribution
and 'was not restricted to the petition and leaflet inols ed
herein.'
As to Respondent's assertion that the leaflet and petition
were in contravention of the collective-bargaining agree-
ment and were in direct conflict with policies and actions
previously undertaken by the Union. I find no merit in this
contention. The collecti e-bargaining agreement was not
placed in the record. At most, what might he involved is an
erroneous interpretation by the employees of contractual
provisions. This is not sufficient to remove from the protec-
tion o the Act employees' concerted activity to improve
working conditions. ('learl. the petition and the leaflet
were not intended to undermine the Union. Rather. it was
concerted activity for the purpose of seeking improvements
in the conditions of employment and to spur the Union to
more effective representation. I therefore find that the circu-
lation of the petition and the distribution of the leaflet were
concerted protected activity. The Singer Cpaly. 220
NLRB 1179 (1975): Sam.vonite (orporation, In(c., 206
NLRB 343 (1973).
Thus. contrary to Respondent's contention. the critical
issue here is the nature of the no-solicitation, no-distribu-
tion rule. It is well settled that an employer may not pro-
hibit its employees from engaging in solicitation relating to
union or other protected activities during nonworking times
or in distribution of literature relating thereto in nonwork-
ing areas of its premises during nonworking time, absent a
showing by the employer that such a prohibition is neces-
sary to maintain plant discipline or production. Betih Isrtil
Hospital v. N,L.R.B., 437 U.S. 483 (1978). Respondent's
' he account of this consersation is ftrm the undenied testinmony if tol
man, whom I credit
I he complalint alleges onls the promulgation and cntlrceenllt I a no-
distrlbutlon rule Itoeer. the same rule also prohibhited lhicatiltln Ind
hence the no -solicilation portion was fulls litigated
9M0
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule, as stated by Regan, flatly prohibits solicitation and
distribution on Respondent's premises. No evidence was
adduced to establish that such a prohibition is necessary to
maintain plant discipline or production. Accordingly, I find
that by its oral promulgation of a rule prohibiting solicita-
tion during nonworking time and distribution of literature
during nonworking times and in nonworking areas of its
facility where such solicitation and distribution is protected
by Section 7 of the Act, Respondent has violated Section
8(a)(1) of the Act.
CON(CI USIONS ()F LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By promulgating, maintaining, and enforcing a rule
that prohibits employees from soliciting on nonworking
time and from distributing literature in nonworking areas
on nonworking time where such solicitation and distribu-
tion is protected by Section 7 of the Act, Respondent has
violated Section 8(a)(I) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action to rem-
edy the unfair labor practices and to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended. I hereby issue the following recommend-
ed:
ORDERm°
The Respondent. Clougherty Packing Company, Vernon.
California, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Promulgating. maintaining, and enforcing a rule that
prohibits employees from soliciting on nonworking time
and from distributing literature in nonworking areas on
nonworking time where such solicitation and distribution is
protected by Section 7 of the Act.
(b) In any like or related manner, interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
10 In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings,. conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies of the
Act:
(a) Post, at its facility in Vernon, California. copies of the
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 21. after being duly signed by an authorized represent-
ative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees customarily
are posted. Reasonable steps shall be taken b Respondent
to insure that these notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
11 In the eent that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted bs Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
Noi-w