Eddie Bauer, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1973

201 N.L.R.B. 442 (N.L.R.B. 1973)

442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olympic Products, Inc., a Subsidiary of Eddie Bauer,
Inc. and Willie Mae Thrash
Olympic Products , Inc. and Amalgamated Clothing
Workers of America, AFL-CIO, Petitioner. Cases
10-CA-9541 and 10-RC-9127
January 26, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 28, 1972, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, Respondent and Petitioner
filed exceptions and supporting briefs, and Respon-
dent filed an answering brief to Petitioner 's excep-
tions to the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National 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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge, as modified below, and to adopt his recom-
mended Order.
1. The Administrative Law Judge found that a
no-solicitation rule which was posted on the plant
bulletin board prior to the advent of the Union was
invalid as it prohibited solicitation for the Union
during the employees' nonworking time . While the
posted rule was removed from the bulletin board 10
days before the election and replaced with a valid
rule, the Administrative Law Judge found that
Respondent Employer violated Section 8(a)(1) of the
Act by maintaining the invalid rule throughout the
union campaign. He further found that the invalid
rule was continued well into the critical preelection
period and recommended that the Petitioner's
objection 4, insofar as it pertains to the no-so l icita-
tion rule, be sustained. We agree that Respondent
violated Section 8(a)(1) by maintaining an invalid
no-solicitation rule. In adopting the Administrative
Law Judge's 8(a)(1) finding , we not not rely, as the
Administrative Law Judge did, on the absence of
evidence that any announcement was made to the
employees that the rule had been changed. The new
rule had been posted, and in our view that was
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
sufficient notice to employees. We find, however,
that the earlier rule was too broad and was in effect
for a sufficient length of time to warrant corrective
action by this Board by an 8(a)(1) order. We find it
unnecessary to determine whether the mere mainte-
nance of that rule (with no reliable evidence that it
was ever invoked to deter protected solicitation) until
10 days before the election, when it was replaced by
a valid one, interfered with the election as we find
that other conduct of Respondent, set forth below,
warrants setting the election aside.
2. In Case 10-RC-9127 the Administrative Law
Judge found that neither the plant manager's
conduct in releasing the employees to vote nor the
raffle held by Respondent on the day of the election
constituted objectionable conduct and recommended
that the Petitioner's objections thereto be overruled.
We disagree.
The record shows that shortly before the election,
Respondent displayed in the voting area grocery
carts loaded with food and signs which stated in
effect that the display represented the annual dues
which the employees would have to pay in the event
they joined the Union, and suggested that the
employees "vote no" in the election. In addition, a
sign was posted stating that the groceries would be
raffled off after the election and that each employee
would be given a raffle ticket after he voted. On the
day of the election, the display was moved to another
part of the plant.
At the preelection conference on the day of the
election, the Board agent agreed that the plant
manager would release the employees to vote using
the public address system in the plant. In addition,
the Board agent specifically instructed the plant
manager to announce that the polls were open and
that employees who wished to vote could proceed to
the polls. Instead of using the public address system,
in accordance with the preelection understanding,
the plant manager released the employees personally
and, while doing so, told each of them individually
where they could pick up their raffle tickets after
they voted. Two employees testified that he also
asked them to vote "no." The plant manager denied
doing so, and the Administrative Law Judge tended
to credit his denial.
The Board has held that, while the use of a raffle as
preelection propaganda is not a per se basis for
setting aside an election, its effect on the exercise of a
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A. 3) We have carefully
examined the record and find no basis for reversing his findings
In the absence of exceptions thereto, we adopt , pro forma, the
Administrative Law Judge 's dismissal of 8(aX3) allegations concerning the
discharge of Willie Mae Thrash
201 NLRB No. 64
OLYMPIC PRODUCTS, INC. 443
free choice in the election depends upon considera-
tion of all the facts and surrounding circumstances.2
Here the plant manager, contrary to agreed-upon
procedures, personally released employees to vote
and utilized his own breach of procedures to solicit
employees to participate in the raffle. We find this
combination of circumstances sufficiently disruptive
of the orderly processes which all parties, including
our own agent, had contemplated, to require that the
election be rerun under more satisfactory conditions.
We believe this conduct was sufficient to interfere
with our election processes and, thus, we shall
exercise our administrative discretion in these mat-
ters and direct a second election. Accordingly, we
sustain the Petitioner's objection 3, set aside the
election, and direct that a second election be
conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Olympic Products,
Inc., a Subsidiary of Eddie Bauer , Inc., Wetumpka,
Aldbama , its officers , agents, successors , and assigns.
shall take the action set forth in the said recommend-
ed Order.
IT IS FURTHER ORDERED that the complaint , insofar
as it alleges unfair labor practices not found herein,
be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the election held on
April 27, 1972, among Respondent 's employees be,
and it hereby is, set aside , and that Case 10-RC-9127
be, and it hereby is, severed and remanded to the
Regional Director for Region 10 for the purpose of
conducting a new election at such time as he deems
that circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election and Excelsior
footnote omitted from publication.]
2 Hollywood Plastics, Inc, 177 NLRB 678, 681 . Electro-Voice Inc, 191
NLRB No. 96. for the reasons stated by him in his dissent in Electro - Voice,
Chairman Miller would find the raffle alone to be sufficient ground for
setting aside the election
an election by secret ballot was conducted on April 27,
1972, which the Union lost by a vote of 97 to 30 with 11
challenged ballots. Timely objections to the election were
filed by the Union and on July 17, 1972, the Board ordered
that a hearing be conducted on three issues raised by the
objections ; whether the election was invalidated by the
imposition of an unlawful no-solicitation rule by Respon-
dent , by the conduct of a raffle of several shoppers carts
filled with groceries allegedly valued at the approximate
amount of union dues, the actions of the manager in
releasing employees to vote and by the discharge of Willie
Mae Thrash.
On April 18, 1972, Willie Mae Thrash filed a charge
against Respondent alleging that the Employer violated
Section 8(a)(3) and (1) of the Act by terminating her
because of her membership in and activities on behalf of
the Union and by this act and others interfered with,
restrained , and coerced employees in the exercise of their
Section 7 rights . The Regional Director of the National
Labor Relations Board , hereinafter called the Board,
thereafter on June 20, 1972, issued a complaint alleging
that Respondent violated Section 8(a)(3) by the discharge
of Willie Mae Thrash and additionally violated Section
8(a)(1) by the enforcement of an unlawful no-solicitation
rule, by the action of the plant manager in threatening
employees with discharge if they engaged in union
activities , by the manager's threat to watch employees at all
times on the plant premises and discharge those who
engage in union activities during working hours in the
plant , and by a threat of a forelady to discharge employees
who join the Union or otherwise engage in union activities.
On June 22, the Regional Director issued an order
consolidating the representation case with the unfair labor
practice charge and noticing the matter for hearing, on
July 27, 1972, at Wetumpka, Alabama. The Respondent, in
its duly filed answer denied the commission of any unfair
labor practices and denied any interference with the
election . On the issues thus joined , a hearing was held
before me on August 3, 1972, at Wetumpka , Alabama, and
continued on August 7 and 8 and concluded at Montgom-
ery, Alabama. All parties were represented by counsel and
had an opportunity to produce relevant and material
evidence , to argue orally on the record , and to file briefs.
Oral argument was waived by the parties and briefs have
been received from the General Counsel, Respondent, and
the Union.
Upon the entire record , and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On March 27,
1972, Amalgamated Clothing Workers of America,
AFL-CIO, hereinafter called the Union, filed a petition
seeking an election among certain employees of Olympic
Products, Inc., hereinafter called the Respondent . Pursuant
to a Stipulation for Certification Upon Consent Election,
I. JURISDICTION
Respondent is an Alabama corporation with a plant at
Wetumpka, Alabama, where it manufactures and sells
sleeping bags and other quilted , down products. Respon-
dent annually sells these products, to a value in excess of
$50,000, directly to customers outside the State of
Alabama.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has two plants, one in Seattle , Washington,
the other in Wetumpka, Alabama. The Wetumpka plant
was managed at the time of the occurrence herein by Ellis
Austin, Jr. The plants' products included sleeping bags,
and quilted garments stuffed with goose down. Two
production lines existed, one producing sleeping bags and
the other the so-called garment line . Mrs. Thrash, the
Charging Party, was a quilter1 on the sleeping bags or bag
line. The quilting process for bags consisted of sewing
parallel seams in the fabric from which the bags were made
after which the goose down was blown into the tubes thus
formed by air pressure. The bags were then taken to Mrs.
Thrash who sewed additional seams at right angles to the
parallel seams, thus holding the down in position between
the fabric sides of the bag material.
The Wetumpka plant has been in operation 3 or 4 years;
Mrs. Thrash was hired within a few months of its opening.
She developed into the fastest and most competent sewer
in either of Respondents plants, according to a statement
of the owner who sought her out when he came to
Wetumpka from Seattle, apparently on an inspection trip.
Although Mrs. Thrash's base pay was only $1.80 an hour
and she worked 40 hours a week in 4 10-hour days her
gross pay for the year preceding her discharge was over
$8,300, due to her high earnings on incentive or production
pay. Prior to the events complained of herein , Mrs. Thrash
had never been criticized for her working habits or for the
quality of her work.
The Union commenced organizing in the theretofore
unorganized Wetumpka plant, holding meetings of em-
ployees in February 1972. Mrs. Thrash was apparently one
of the leading union adherents in the plant and personally
"signed up" about 14 of the employees.2
On March 2,3 during the luncheon period, Mrs. Thrash
gathered with about 15 of her fellow employees who were
interested in the Union and informed their forelady , Billie
McCraw, that they had signed union cards and were
working to get a union in the plant. Mrs. McCraw
answered, "Let's go somewhere and talk this over private-
ly" to which Mrs. Thrash answered that she didn't have
time to talk privately and that Mrs. McCraw could say
anything that she had to say then and there because when
she got back to her machine talking would interrupt Mrs.
Thrash's production. Mrs. McCraw answered , "Bi114 I
don't think the Union has anything to offer you, we give
you everything that we can." No more of the conversation
was reported by Mrs. Thrash.
On the same day, after her "acknowledgment" Mrs.
Thrash was taken ill and hospitalized. She returned to the
plant after about a week and worked until March 28, when
I According to Mrs Thrash's testimony she was the only quilter.
2 The report on objections in the representation case indicates that there
were 143 employees in the unit which included production and maintenance
she was discharged under circumstances which will be set
forth below.
In the meantime the employer commenced a campaign
opposing the union organization. Manager Austin deliv-
ered speeches to all the employees in groups on or about
March 6. Various statements attributed to Austin in the
March 6 speeches are alleged by the General Counsel to be
violative of Section 8(a)(1) of the Act.
Prior to the advent of the Union and at all times within
the memory of the employees, a document bearing the
Company's rules was posted on the bulletin board. One of
the rules was stated as follows:
There will be no raffles, selling , solicitations, nor
collections taken up in the plant. You will not be
bothered by any of these things and we do not expect
you to bother any one else with any of them. The only
exception to this will be the United Appeal for this area
which will be conducted once a year. Payroll deduction
is available for this for those who so desire.
In his March 6 speech Manager Austin made reference
to the no-solicitation rule which will be discussed below.
The parties stipulated that on April 17 the document was
removed from the bulletin board and replaced with
another, the relevant portion of which states as follows:
There will be no solicitation by employees at any time
when either the soliciting employee or the employee
solicited is at work. Solicitation includes the distribu-
tion or collection of literature, cards, papers, buttons or
other objects, and any inducement or request of a
person to sign a card or paper or to pay or contribute
money. It also includes any inducement or request of a
person to support or oppose a union, other than a
short, casual conversation not interfering with work
and not involving an employee's leaving his work
station.
Distribution of literature by non-employees on compa-
ny property is prohibited. Distribution of literature by
employees on company property which interferes with
production or with the orderly housekeeping of the
plant is prohibited.
The second document, which was posted on April 17,
was substantially different in every respect from the
original document which dealt with vacation policy,
holidays, insurance coverage, work breaks, parking, and
attendance . With the exception of certain matters relating
to attendance, none of these subjects are covered in the
second set of rules, but many new rules were recited
therein.
There is no evidence that a no-solicitation rule either as
it was posted prior to April 17, 1972, or as it was posted
thereafter, has ever been enforced by the imposition of
discharge or discipline. With the exception of the single
charitable campaign annually held there is no evidence
that Respondent was ever aware of any breach of the rule.
On April 27 the election was conducted. For a short
period of time prior to the election Respondent had
erected, in the breakroom where the election was to be
conducted, a display which consisted of several grocery
and warehouse employees with the normal exceptions
3 All dates hereinafter are in the year 1972 unless otherwise specified.
4 Mrs Thrash 's nickname is Bill
OLYMPIC PRODUCTS, INC.
carts loaded with food and a sign which stated, in effect,
that the grocery carts represented the annual dues which
the employees would have to pay in the event they joined
the Union. The display suggested to the employees that
they vote no. In addition , a sign was posted stating that the
groceries would be raffled off after the election and that
each employee after he voted would be given a raffle ticket.
Several hours before the election was to take place the
display was moved from the voting area to another part of
the plant .5
On the election day, at the preelection conference, the
Board agent agreed that the plant manager would release
the employees to vote using the public address system in
the plant. The Board agent suggested to Manager Austin
that he simply announce that the polls were open and that
employees who wished to vote could then proceed to the
polls. Instead of using the public address system, however,
Austin released the employees personally and added to the
message that after they voted they could go to the rear of
the down room to pick up their "grocery ticket." Two
witnesses called by the General Counsel testified that in
addition to the announcement Austin asked them to vote
no. Austin denied doing so.
B. The Discharge of Willie Mae Thrash
Because of the speed with which she worked , Willie Mae
Thrash was, next to the manager, the highest paid
employee in Respondent 's plant . She was also the leading
union adherent ; she was the spokesman at the ceremony at
which the employees acknowledged their interest in the
Union to Forelady McCraw. The General Counsel
contends that her discharge stemmed from her union
adherence and thus violated Section 8(a)(1) and (3) of the
Act. The Respondent contends that Mrs. Thrash was
discharged by Mrs. McCraw because while being repri-
manded by Mrs. McCraw for wasting time in the ladies
room she became abusive and profane and Mrs. McCraw
discharged her for insubordination.
The record reveals that prior to the advent of the Union
the piece rates upon which the employees earnings were
based had been "adjusted" to the end that the employees
had to increase their production in order to maintain their
earnings . There is some evidence that this was the cause of
the initial interest of the employees in organizing the
Union.
The normal practice at Respondent's plant was that
employees were given a 10-minute work break in the
morning, around 9:30. They went to lunch at 11:30 and
had a second break during the afternoon. The normal plant
working hours were from 7:30 in the morning to 6 p.m., 4
days a week. Employees were allowed to smoke only in the
restrooms and the breakroom. Those employees who
smoked regularly took additional breaks, without leave.
Two of the employees testified that they took hourly
breaks during the day for a cigarette; others, that they
would normally take a break between starting work and
the official morning break , another one between that and
lunch, another between lunch and the afternoon break,
5 A similar display was placed in the warehouse where a number of the
employees regularly worked.
445
and another one after the afternoon break before going
home. This works out roughly to a break every hour. While
the supervisory staff attempted to inhibit the employees in
taking breaks to this extent, there is no evidence that
anyone was ever discharged therefor or that other
sanctions were imposed .6
Mrs. Thrash did not smoke and ordinarily worked
through the rest periods in the morning and afternoon. As
a result , and because of her fast work , her normal earnings
for the last 6 months of 1971 were $3.93 an hour. The next
highest paid employee in the plant was George Haney
whose average earnings in the same period were $3.07, and
Sue Luster whose average earnings were $3 .06. When the
rates were changed however , Mrs. Thrash complained to
her supervisor Mrs. Stalnacker and said that although she
had not taken her breaks in the past she would do so in the
future . It apparently was from this time that she started
taking breaks regularly.
Mrs. Thrash testified that on March 2, after she had
made her acknowledgment to Mrs . McCraw, when she
returned from lunch she found that her machine was
surrounded by boxes of rejected work which she was
expected and required to repair . The repair consisted of
removing the stitches and resewing the bags. According to
various witnesses called by Respondent an entire "cut" or
order of from one to 200 sleeping bags had been rejected
by the inspection department all of which had been sewn
by Mrs. Thrash. The inspectors normally inspect each bag
as it comes to them. The bags are placed either 5 or 10 in a
box. If they find that the same thing is wrong with each bag
in a box or in several boxes , they send the entire lot back
without inspecting each piece separately and leave it to the
person who made the mistake to make the corrections.
That is what happened in this instance , and the entire lot
was sent back to Mrs . Thrash because of pleats sewn into
the material that resulted from either an excess of down
having been pumped into the tubes or from the down not
having been distributed evenly . According to the testimony
of Mrs. Thrash , there was nothing wrong with the work
sent back to her but she spent all the time from March 2,
1972, until her discharge on March 28 , 1972, pulling out
the stitches and resewing the material . She testified that
much of the work that she resewed was again returned to
her so that she resewed some pieces more than one time.
However, she also testified that some of the work was not
below standard and that Mrs. Stalnaker agreed with her
and sent it through . I conclude from all the evidence
offered on the subject that the initial fault was probably
due to the insertion of too much down into the sleeping
bags and that , as a result of handling, the down was not
evenly distributed . I find that in fact the work was
defective. Mrs. Thrash had no explanation as to how she
selected which seams she would rip out and resew if there
was nothing wrong with the sewing in them. Also
Respondent produced evidence that in the last week of her
employment Mrs. Thrash earned almost $75 on prod-
uction, so it would appear that she did not spend all of her
time on repairs as she testified.
As I stated above , Mrs. Thrash became ill and went to
6 Inasmuch as the employees were for the most part on an incentive pay
plan probably the loss of earnings was a sufficient deterrent.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hospital for a period of a week during March. When
she returned to work she was taking a pill, apparently a
diuretic , on the orders of her doctor . As a result of this it
was necessary for her to go to the washroom more
frequently . At this time however , it also became her custom
along with three other girls that worked near her, all of
whom were interested in the Union , to go into the
washroom almost every hour where they would stand and
talk for a few minutes before returning to work. This
apparently did not seriously impede Mrs. Thrash's pro-
ductivity, judging , from the amount that she made on
production in her last week.
Mrs. Thrash was discharged on Tuesday , March 28. On
the preceding Friday, the cutting room and inspection crew
worked overtone and commenced working early in the
morning . Mrs. Thrash customarily worked from 5 a.m.
until 4 p.m. for which a special arrangement had been
made in order to enable her to be at home when her
husband , who was ill , required assistance from her . On this
particular day the cutting room took their morning break
at 8:30 because they had started earlier . As they came by
her machine Mrs. Thrash said that she was going to take a
break too , and accompanied them to the breakroom where,
according to at least one witness , she drank a cup of coffee
before going back to work .? Thereafter she came back to
work and when the bag line took their break at 9:30 she
again went out with them and joined them in the
breakroom . Mrs. McCraw was in the breakroom doing
some clerical work at a table and saw Mrs . Thrash taking a
second break. She remonstrated with her and told her that
she was not permitted to take two breaks . Apparently an
argument ensued and Mrs. Thrash told Mrs. McCraw that
she thought that she was due a break every 2 hours as the
cutting department got. Mrs. McCraw told her that she did
not work for the cutting department and that she should go
back to work. Mrs. Thrash refused. Mrs. McCraw then told
Mrs. Thrash either to go back to work or sign her timecard
and go home. Mrs. Thrash said she would go back to work
but that she was going to report the matter to the Labor
Board.
On March 28, as had become customary, Mrs. Thrash,
her friend, Sue Luster, and a number of the other girls went
to the washroom at the same time and stayed there talking.
Mrs. McCraw noted their absence and went into the
washroom . She testified that from outside the washroom
she could hear them laughing and talking inside. Accord-
ing to Mrs. Thrash 's testimony, Mrs. McCraw walked in
and pointed a finger at each of the four girls and said,
"you, you, and you, go back to work." According to Mrs.
McCraw, she simply walked in and told the group
assembled that they had been in there long enough and to
please go back to work. After the girls came out, they went
back to their machines . Mrs. McCraw then went to each of
the girls and told her she was abusing the washroom
privileges and that she was going too frequently and
staying too long and asked her to watch herself . According
to Mrs . McCraw, when she said this to Sue Luster, Mrs.
Luster said, "It's getting to where you can't do anything
around here."
According to Mrs . McCraw, she went to Mrs . Thrash's
machine and started out saying "Bill, you're spending way
too much time in the bathroom , could you please ..." at
which time Mrs. Thrash interrupted her saying that she
had worked there for 3 - 1/2 years and had not taken her
breaks but that she was going to from then on, and
furthermore that she would do so whenever she pleased.
This diatribe was accompanied with vulgar and obscene
language . Mrs. McCraw remonstrated with her for the
obscene language to which Mrs . Thrash answered that she
had always cursed and she could not be fired for it and
that she'd go to the bathroom whenever she pleased,
whereupon Mrs. McCraw agreed that she could not fire her
for cursing and that she would not fire her for going to the
bathroom . Mrs. Thrash then made a vulgar suggestion and
challenged Mrs. McCraw to fire her. Mrs . McCraw
accepted the challenge and told her that she was fired for
insubordination and disrespect to a supervisor.
Mrs. Thrash then called to Mrs . Luster, stating that she
had just been fired for going to the bathroom. Mrs.
McCraw denied that this was the truth and walked away.
She then saw Mrs. Thrash go to Sue Luster's machine and
talk to her. Mrs . McCraw returned and asked Mrs. Thrash
to leave the building , to which Mrs. Thrash answered that
she did not work there anymore and Mrs . McCraw could
not tell her what to do anymore and if she did not watch
out she , Mrs. Thrash , would beat her. According to Mrs.
McCraw's testimony all of this was accompanied on the
part of Mrs. Thrash by vulgar and obscene language.
According to the testimony of Mrs . Thrash, Mrs.
McCraw came to her machine and told her that that would
be the last time she could go to the restroom . When Mrs.
Thrash answered that there were times that she had to go
to the restroom, Mrs. McCraw reiterated that she could not
do so anymore , then , or at any other time . Mrs. Thrash
answered that if she had to go she would and Mrs.
McCraw answered "if that's the way you feel about it get
your timecard , sign out and get out of here." Mrs. Thrash
asked what she was discharged for and was told for
insubordination , that is , not complying with the rules.
According to Mrs. Thrash , she called to Sue Luster to mark
down the time at which she was fired and left . Mrs. Thrash
denied that she at any time used profanity or threatened to
administer a beating to Mrs . McCraw.
I credit neither Mrs. Thrash nor Mrs . McCraw as to what
was said in the heated argument . I found throughout their
testimony that both were given to embroidering the truth
or had convenient memories . No witness was called who
heard the entire argument . However, both the General
Counsel and Respondent attempted to buttress their
positions by calling witnesses who heard part of the
argument and from the testimony of the various witnesses,
most of whom were more credible than either of the
principals to the argument , I find that during the argument
Mrs. Thrash spoke with inordinate vulgarity to Mrs.
McCraw , challenged her authority, and told her that she
would continue going to the washroom whenever she saw
fit. I find that Mrs. McCraw , who impressed me as a
somewhat prudish person , took great offense at the
r I do not credit Mrs. Thrash' s testimony that she merely happen to go
into the breakroom at this time to get some water to wash down a pill
OLYMPIC PRODUCTS, INC.
vulgarity addressed to her and summarily discharged Mrs.
Thrash for insubordinate behavior. While the General
Counsel contends that in the industrial world vulgar and
obscene language is not uncommon and produced some
evidence that in Respondent's plant no one had ever been
reprimanded or otherwise punished for the use of such
language, there is no evidence that any employee at any
time had ever addressed vulgar or obscene language to a
supervisory employee.
The General Counsel argues that Mrs. Thrash is the
victim of a plot by the supervisory hierarchy to discharge
her because of her union activities. I consider that the
evidence reveals such a plot to be most improbable, for the
occasion for the discharge took place at a time when the
plant manager was not at the plant and I cannot believe
that the floorlady would have dared effectuate a discharge
for unlawful reasons without first consulting with him. I
believe and I find that_ Mrs. McCraw discharged Mrs.
Thrash for her intemperate language during the argument
which Mrs. McCraw considered to be just cause. The
General Counsel would have me infer from the general
antiunion bias allegedly displayed by Respondent, with
which I shall deal below, and from the obviously leading
position of Mrs. Thrash in the union effort that the
discharge, at least in part, was designed to discourage
union membership. I find that any inference of this nature
that I might draw is overcome by the evidence that Mrs.
Thrash was discharged for cause. Accordingly, I shall
recommend that the complaint, insofar as the discharge is
alleged to be violative of Section 8(a)(3) and (1) of the Act,
be dismissed.
C. The Alleged 8(a)(1) Incidents
The no-solicitation rule posted in the plant prior to April
17 was clearly unlawful in that it prohibited solicitation at
the plant at any time for any purpose .8 The rule which
replaced the invalid rule prohibited solicitations only when
either the solicitor or the solicited employee was supposed
to be working, which is presumptively valid. Plant
Manager Austin testified that the rule at all times was as
set forth in the second notice and that the second notice
merely was an augmentation of the first posted rule. He
further testified that while he did not remember everything
he said, basically he said that "the company had a policy
prohibiting solicitation on company property during
working hours and that it intended to enforce the policy
with disciplinary action which might include termination."
In an affidavit given the General Counsel during the
investigation of this case, however, Mr. Austin stated "the
company has a no-solicitation rule, which, as posted,
prohibits solicitation on company property. This rule is
enforced with one exception, for the United Fund. This
exception is posted as part of the rule."
Numerous employee witnesses called by the parties add
little light. Five witnesses called by the General Counsel
testified that Austin in his March 6 speech said there would
be no solicitation at any time and that employees would be
" Dayhn, Inc, 198 NLRB No 40: Stoddard Cork Manufacturing
Company, 138 NLRB 615
9 Austin said the speech was not written out and that he spoke from an
outline
447
fired on the spot if they were caught. One said that this was
expanded to no solicitation during working hours from
7:30 a.m. to 6 p.m. but changed her story on cross-
examination to no solicitation at any time , meanwhile two
others changed their stories on cross-examination to
prohibition of solicitation during working hours, 7:30 to 6
p.m. Nine of the ten witnesses who testified for Respon-
dent on the subject stated that he said there would be no
solicitation during working hours; one had no recollection
at all and one quoted Austin as saying that there would be
no solicitation on the job. Of these, five testified that
Austin made no threats that anyone would be terminated
for soliciting, and five said that they would be terminated
for soliciting . Five said that he read his speech and three of
them , including Mrs. McCraw, said that he announced that
he would read the speech so that he would not be
misquoted .9
I conclude that no decision can be reached on the basis
of the weighing of numbers of witnesses with their
variations of testimony. There appeared to have been more
than a little intercommunication among the witnesses, who
were not sequestered during the hearing . Surprisingly,
many of the witnesses called by both sides recall little or
nothing of the speech except the key phrase that they
testified to. Austin himself testified to a rather hazy
recollection of what he said at the various meetings since
he was , in effect , speaking off the cuff from an outline.
I conclude that the only rule of which Austin was aware
on March 6, the rule that was in existence and enforced
until April 17, was the invalid rule forbidding distribution
on company premises at any time. While the invalid rule
was supplanted on April 17, very shortly before the
election, by another rule which the General Counsel does
not contend to be invalid, there is no evidence that any
announcement was made to the employees that the rule
had been changed or that the new rule had been posted.
Indeed one witness , employee Heard , testified that she was
familiar with the rule because it was posted on a bulletin
board but was unable to identify which of the two rules
was posted thereon.io
I find that by maintaining an invalid no-solicitation rule
throughout the union campaign Respondent interfered
with , coerced , and restrained employees in the exercise of
their Section 7 rights in violation of Section 8(a)(1) of the
Act.
I further find that Plant Manager Austin by threatening
Respondent 's employees with discharge if they engaged in
solicitation or organizing activities in the plant further
violated Section 8(a)(1) of the Act.
The General Counsel contends that Manager Austin
threatened employees that they would be watched at all
times for the purpose of ascertaining whether they were
engaging in union activities, and supervisors would follow
employees into the washroom to enforce the rule. The
testimony on which the General Counsel relies in this
regard is that of employee Sue Luster. Her testimony was
very ambiguous on this point and it was only after
10 Miss Heard is the only witness who claimed to have heard the rule
mentioned in a speech prior to March 6 . 1972, although numerous witnesses
denied that it had been mentioned prior thereto
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerable leading that she made a statement that could
be construed as attributing such a threat to Mr. Austin. I
find that the General Counsel has failed to substantiate the
alleged threat by a preponderance of credible evidence and
I shall accordingly recommend that the allegation be
dismissed.
The General Counsel contends that Forelady McCraw
threatened Mrs. Thrash that Respondent would discharge
anyone who joined the Union or otherwise engaged in
union activities.' The only evidence with regard to this
allegation is the testimony of Mrs. Thrash which is denied
by Mrs. McCraw. I found neither Mrs. Thrash nor Mrs.
McCraw particularly credible and accordingly I find that
the General Counsel has failed to sustain his burden of
proof in this regard. I recommend that this allegation too
be dismissed.
IV. THE OBJECTIONS
The objections generally include the unfair labor
practice allegations with which I have dealt 'above. The
only unfair labor practice that I have found was in the
imposition of the invalid no-solicitation rule. The petition
was filed on March 27 and the evidence reveals that the
invalid no-solicitation rule was continued at least until
April 17, well into the critical period. Accordingly, I shall
recommend that objection 4, insofar as it pertains to the
no-solicitation rule, be sustained.
In addition to the unfair labor practice allegations, as
objections, the Petitioner objected to the conduct of Plant
Manager Austin in releasing employees. According to the
testimony of Sue Luster and Charlestine Bickerly, when
Austin released them individually, after stating that the
polls were open and that they could vote , he said , in effect,
that he would appreciate their voting no. Austin denied
making any such statement at the time he released the
employees but admitted that he had distributed partial
paychecks representing the amount of union dues to the
employees earlier and on that occasion handed them the
check explaining that it represented the amount of dues
that would be withheld from their pay if they were
represented by a union under a checkoff and asked them to
vote no.
I do not believe that Austin during the course of the
election, under specific instructions as to what he could say
in releasing employees, made any such request to employ-
ees Bickerly or Luster. I believe that they are confusing the
two occasions and attributing the statement made earlier to
the latter one. It is noteworthy that no other employees
testified that they were so approached. Sue Luster was one
of the more notable union adherents and a close friend of
Mrs. Thrash. It is inconceivable to me that knowing this, as
Austin must have known it, he would have made such a
statement to Mrs. Luster, thereby endangering the election
in the event the Union received a minority of the votes. I
find that the evidence does not sustain the objection and I
recommend that it be overruled.
Admittedly Austin suggested to employees that they pick
up their raffle tickets after they voted. The Union contends
that this too gives the employer an unfair advantage and
taints the Board's election process. The Petitioner addition-
ally contends that the raffle in itself constituted an
impermissible form of election propaganda because it was
so intertwined with the balloting procedure that it
interfered with the election . This argument is based on the
fact that the raffle prizes were displayed in the voting area
and "vote no" signs as well as raffle signs were in the ballot
area until the morning of the election.
I do not believe that the raffle constituted objectionable
conduct even under the circumstances shown herein. The
fact that the obtaining of a raffle ticket was not made
contingent on how an employee voted, and indeed under
the circumstances on whether the employee voted , the fact
that the announcement was made immediately before the
employees voted and the fact that the distribution of the
raffle tickets was not made in the vicinity of the polling
place all tend to bring this matter within the circumstances
found by the Board in Hollywood Plastics, Inc., 177 NLRB
678, 681, to be insufficient to warrant setting the election
aside . The Petitioner's further argument that a raffle of this
nature is per se impermissible is also answered by the
Board's decision in Hollywood Plastics, Inc. I recommend
that the objection , in its entirety , be overruled.
V. THE EFFECT OF UNFAIR LABOR PRACTICES ON
COMMERCE
The activities of the employer set forth in section III,
above, occurring in connection with the operation of the
Employer, set forth in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found the Respondent has engaged in unfair
labor practices violative of Section 8(axl) of the Act I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action design to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. By maintaining and enforcing a rule which prohibits
employees from distributing literature in the plant on
nonworking time and by threatening employees with
discharge in the event they solicited in violation of said
invalid rule , Respondent has violated Section 8(a)(1) of the
Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By the maintenance of the invalid no-solicitation and
distribution rule as set forth above the employer has
interfered with the free choice of the voters in the election
conducted by the Board among Respondent 's employees.
Upon the foregoing findings of fact, conclusions of law,
OLYMPIC PRODUCTS, INC. 449
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: ii
ORDER
from the date of this Order, what steps the Respondent has taken to comply
herewith "
Olympic Products, Inc., a subsidiary of Eddie Bauer,
Inc., its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Maintaining, giving effect to, or enforcing any rule
which prohibits any employees soliciting on behalf of a
labor organization where the activity occurs during
nonworking times in the plant.
(b) Threatening any employee with discharge because of
his activities on behalf of Amalgamated Clothing Workers
of America , AFL-CIO, or any other union.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its plant and office in Wetumpka , Alabama,
copies of the attached notice marked "Appendix." 12
Copies of said notice , on forms supplied by the Regional
Director for Region 10, after being duly signed by an
authorized representative 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 are customarily posted . Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered , defaced , or covered by any other material.
(b) Notify the Regional Director for Region 10, in
writing , within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'3
I FURTHER RECOMMEND that the election should be set
aside and the Board direct that a new election be
conducted.
ii 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
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 24 , in writing, within 20 days
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence , the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form , join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with or
restrain or coerces employees with respect to these
rights.
WE WILL NOT maintain , give effect to, or enforce any
rule which prohibits our employees from soliciting on
behalf of any labor organization in nonworking times
in the plant.
OLYMPIC PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Peachtree Building, Room
701, 730 Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.