Detroit Plastic Molding Co.

National Labor Relations Board - Board Decisions

Mar 18, 1974

209 N.L.R.B. 763 (N.L.R.B. 1974)

DETROIT PLASTIC MOLDING CO.
Detroit Plastic Molding Co. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
7-CA-10398
March 18, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Upon a charge filed on May 24, 1973, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
Detroit Plastic Molding Co., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint and amended com-
plaint on July 2 and July 27, 1973, respectively,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that commencing on
or about November 25, 1972, Respondent has
maintained two no-solicitation rules, hereafter called
the November rule and the June rule, unlawfully
broad in scope. On July 9 and August 3, 1973,
respectively, Respondent filed its answer and amend-
ed answer to the complaint, admitting in part, and
denying in part, the allegations in the complaint.
On September 13, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 26,
1973, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed its Response to Notice To Show
Cause and Cross-Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
1 The November rule states, "There will be no union activity,
solicitation , or passing out of literature during any employee's working time
or in any work area Also, no union activity or solicitation can take place
and neither literature nor printed matter can be passed out on company
property in any work area by any employee or union agent . Any offender
will be discharged."
2 The June rule states , "There shall be no solicitation of any nature by
any employee in any work area during employees' working time, nor shall
763
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary
Judgment
The amended complaint alleges that the Respon-
dent posted on its bulletin boards and published in
its employee handbook two allegedly unlawful no-
solicitation rules hereinafter referred to as the
November i and June 2 rules , respectively. Since the
Respondent admits the posting and publication of
the rules, the General Counsel asserts that he is
entitled to have his Motion for Summary Judgment
granted. In its opposition to the General Counsel's
motion and in support of its Cross-Motion for
Summary Judgment, the Respondent alleges that not
only have these rules never been enforced but also
that (1) the admittedly unlawful November rule had
been only inadvertently included in the revised
employee handbook and posted on the bulletin
board during the period between November 25, 1972,
and late May 1973, when the matter was called to the
Respondent's attention and the unlawful language
was deleted from the handbook; and (2) the June
rule is lawful because it was first promulgated in
1967 in compliance with Trial Examiner Nachman's
Decision3 in Case 7-CA-5806 and with the accept-
ance of Region 7's Compliance Officer and it had
been maintained until November 1972; and, in any
event, this June rule, which was reissued4 after the
November rule had been deleted, was rescinded a
month later when a Board agent questioned its
legality under the Board's recent Avon precedent.5
The Respondent, therefore, argues that an unfair
labor practice finding or remedial order is not
warranted. We find merit in the Respondent's
position.
The pleadings and documents filed herein by the
Respondent and General Counsel reflect that Trial
Examiner Nachman had occasion earlier to consider
the legality of the November no-solicitation rule. In
his Decision of April 17, 1967, he found that the
Respondent violated Section 8(a)(1) of the Act by
promulgating a rule, identical with the November
rule, which prohibited solicitation on an employee's
nonworking or free time and thereby contravened
there be any distribution of any literature or other printed matter in any
work area at any time."
3 The title of "Trial Examiner" was changed to "Administrauhe Law
Judge" effective August 19. 1972
4 Minor changes were made in the 1967 rule ; the June rule, as alleged in
the complaint, had added to it the words "by any employee' and
"employees."
5 Avon Convalescent Center , Inc., 200 NLRB No. 99.
209 NLRB No. 136
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the guidelines set forth in Stoddard-Quirk Manufac-
turing Co., 138 NLRB 615.
The Trial Examiner 's Decision and recommended
Order were adopted by the Board because the
Respondent did not file exceptions . Instead , Respon-
dent adopted the June rule prohibiting solicitation
"of any nature in any working area during working
time." The rule was submitted to, and accepted by,
the Compliance Officer for Region 7 . The Respon-
dent alleges that it and Region 7 agreed that the rule
"complied with the National Labor Relations Act."
This rule was in existence for 5 years from 1967 to
November 1972, when the employee handbook was
revised , and, through a clerical error , came to include
the November rule which subsequently was posted
on the bulletin board . When the unfair labor practice
charge herein , filed on May 24, 1973, brought the
error to the Respondent 's attention , the unlawful
November rule language was promptly deleted from
the handbooks , and the Respondent reissued and
reposted the June rule which had previously been in
effect for 5 years without being questioned and
without being enforced.
Shortly thereafter, a Board agent from Region 7
indicated that, in his view , the above reposted rule
was not lawful under the Board's recent decision in
Avon, supra. Accordingly, while not conceding that
the rule was illegal , the Respondent immediately
rescinded it and substituted a new rule which is
presently in effect at the Respondent 's plants. There
is no allegation that the present rule is unlawful.
In American Federation of Musicians , Local 76,
AFL-CIO (Jimmy Wakely Show), 202 NLRB 620, the
Board had before it the question of the legality of a
union's threat to bring charges against , and fine, a
supervisor . The Board panel found that while
precedent indicated that the conduct would other-
wise be found to violate Section 8 (b)(1)(B) of the Act
and require a remedial order the conduct was so
minimal and had been so substantially remedied by
the union 's subsequent conduct , that neither the
finding of a violation nor the issuance of a remedial
order was warranted . We believe that the Wakely
precedent is applicable herein.6
As set forth above , the Respondent's admittedly
unlawful November rule had not been in existence
for 5 years prior to November 1972 when it
inadvertently was published through clerical error.
When the error was called to the Respondent's
attention in May 1973 , it promptly rectified it by
deleting the rule from the handbooks and reissued
the rule which had originally been published in 1967
with the acquiescence of Region 7's Compliance
Officer . Apparently, the rule was considered to be
legal and was not questioned during its posting for
years. However, a month later in June 1973 the
reissued rule was rescinded when a Board agent
questioned its legality under Avon, supra. Neither the
November rule, which was inadvertently posted for
about 6 months, nor the June rule, which was
considered to be lawful and which had been in
existence for over 5 years, had been enforced against
the employees. In all these circumstances, it is
unnecessary to determine whether the past mainte-
nance of the November and June rules might
otherwise violate Section 8(a)(1) of the Act, because
we believe that their maintenance was so minimal
and isolated in character that it does not furnish a
sufficient basis for either a finding of a violation of
the Act or the issuance of a remedial order.
Accordingly, we shall deny the General Counsel's
Motion for Summary Judgment and grant the
Respondent's Cross-Motion for Summary Judgment
and dismiss the amended complaint in its entirety.
FINDINGS OF FACT
0
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of
Michigan. At all times material herein, Respondent
has maintained its principal office and place of
business at 18125 E. Ten Mile Road in the city of
East Detroit and State of Michigan, herein called the
East Detroit plant. Respondent has, at all times
material herein, maintained another place of busi-
ness at 15201 Eleven Mile Road in the city of
Roseville and State of Michigan, herein called the
Roseville plant. Respondent is, and has been at all
times material herein, engaged in the manufacture,
sale, and distribution of plastic products and related
products.
During the year ending December 31, 1972,
Respondent, in the course and conduct of its
business operations, purchased and caused to be
transported and delivered at its East Detroit and
Roseville plants plastics and other goods and
materials valued in excess of $100,000 of which
goods and materials valued in excess of $50,000 were
transported and delivered to its plants in East Detroit
and Roseville, Michigan, directly from points located
outside the State of Michigan. During the same year,
Respondent sold and distributed products valued in
excess of $500,000 of which products valued in excess
of $50,000 were shipped from said plants directly to
points located outside the State of Michigan.
6 See also Witchila Eagle & Beacon Publishing Co., Inc, 206 NLRB No.
16.
DETROIT PLASTIC MOLDING CO. 765
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
amended complaint herein, does not violate Section
8(a)(1) of the Act.
ORDER -
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Ameri-
ca (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
CONCLUSIONS OF LAW
The conduct of the Respondent, as alleged in the
It is hereby ordered that the General Counsel's
Motion for Summary Judgment be, and it hereby is,
denied.
IT IS FURTHER ORDERED that Respondent's Cross-
Motion for Summary Judgment be, and it hereby is,
granted.
IT IS FURTHER ORDERED that the amended com-
plaint be, and it hereby is, dismissed in its entirety.