Elmendorf & Fort Richardson Barber Concessions

National Labor Relations Board - Board Decisions

Jan 29, 1980

247 N.L.R.B. 667 (N.L.R.B. 1980)

ELEMENDORF & FORT RICHARDSON BARBER CONCESSIONS
Lee Simmons and Beverly McKinstry Simmons, A
Partnership, d/b/a Elmendorf & Fort Richardson
Barber Concessions and Local 56, International
Association of Barbers, Beauticians, and Allied
Industries International, AFL-CIO-CLC. Case 19-
CA-10631
January 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 6, 1979, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions, a supporting brief, and an
answering brief.
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 and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Lee
Simmons and Beverly McKinstry Simmons, A Part-
nership, doing business as Elmendorf & Fort Richard-
son Barber Concessions, Anchorage, Alaska, their
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following paragraph for paragraph
l(b):
"(b) Promulgating or enforcing a no-solicitation
rule so as to prohibit solicitation, by telephone or
otherwise, during nonworking time on the Respon-
dent's premises."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' We have modified par. I(b) of the recommended Order to limit its
application to nonworking time in accordance with the existing Board policy.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or discriminate in any
other way against employees for supporting Local
56, International Association of Barbers, Beauti-
cians, and Allied Industries International, AFL-
CIO-CLC, or any other union.
WE WILL NOT prohibit our employees from
soliciting, by telephone or otherwise, on Barber
Concession premises during nonworking time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form labor organizations, to join or assist the
above-named or any other labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL rescind our rule prohibiting the use
of our telephones for union activities by employ-
ees on their nonworking time.
WE WILL make Sammie Robbins and Carrol
Underwood whole for any loss of wages, with
interest thereon. Valid offers of reinstatement
have been given to Sammie Robbins and Carrol
Underwood.
LEE SIMMONS AND BEVERLY MCKINSTRY
SIMMONS, A PARTNERSHIP, D/B/A
ELMENDORF & FORT RICHARDSON BARBER
CONCESSIONS
DECISION
HAROLD A. KENNEDY, Administrative Law Judge: Lee
Simmons and Beverly McKinstry Simmons, A Partnership
doing business as Elmendorf & Fort Richardson Barber
Concessions, are charged with violating Section 8(aX)(1) and
(3) of the National Labor Relations Act, as amended, in
connection with the operation of barbershops at the Fort
Richardson Army Post and Elmendorf Air Force Base in
Alaska. The complaint, issued by the Regional Director for
Region 19 on September 27, 1978,' following the filing of a
charge by Local 56 of the International Association of
Barbers, Beauticians and Allied Industries International,
AFL-CIO-CLC, alleges that Respondent violated Section
8(a)(3) of the Act by terminating Sammie Robbins and
Carrol Underwood on or about July 24 "wholly or in
substantial part because of their activities in soliciting
' All dates refer to 1978 unless otherwise stated.
247 NLRB No. 93
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support for the Union and for the purpose of discouraging
support for or membership in the Union. "2 The complaint
alleges that Lee Simmons, acting as an agent for Respon-
dent, violated Section 8(a)(1) of the Act "in or about June
1978" and again on or about July 24 by directing "employ-
ees not to use Respondent's telephone for discussion of
union matters, and not to discuss the Union during working
hours, to include break times." Accordingly to the com-
plaint, Respondent allows employees to use its telephone for
personal matters, but not for discussion of union matters2
The case was heard in Anchorage, Alaska, on March 8,
1979.
Jurisdiction is not an issue. At the hearing Respondent
acknowledged that the Union is a labor organization as
defined in Section 2(5) of the Act. It was stipulated that
Respondent receives gross revenues in excess of $20,000
each month from its barbershop operations at the two
Alaska military installations. Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Since April 26, 1978, Respondent has operated barber-
shops at Fort Richardson and Elmendorf Air Force Base in
the Anchorage area under contract with the Army and Air
Force Exchange Services. Respondent provides barbering
services for military personnel, retirees, and military depen-
dents at three locations at Fort Richardson-in building 1,
building 5 (the main PX), and building 635-and at three
locations at Elmendorf-in the "Log Cabin," the hospital,
and Matanuska Hall.
Lee Simmons, referred to as "Simmons" herein as he is
the active manager of the business and the only partner who
appeared at the hearing, testified that he and his wife
"jointly own the contract." Mrs. Simmons does the book-
keeping for the business.
Respondent employs approximately 18 persons, including
two part-time relief barbers. The shops are open 5-Y, days a
week. Carrol Underwood, one of the alleged discriminatees,
worked with Doyne Houghton and John Greene at the shop
in building 5 at Fort Richardson. Robbins, the other alleged
discriminatee, worked at the Log Cabin location at Elmen-
dorf with Ted Farthing and owner Simmons. Simmons
worked "two chairs adjacent" to Robbins after becoming the
"concession contractor" in April. Simmons said he had
worked previously as a "commission" barber with Robbins
in the Log Cabin shop for approximately I year. He stated
that he hired Underwood around June and would see
Underwood two or three times a week when he (Simmons)
went to building 5 to "clear the register."'
Simmons testified that he decided to discharge both
Robbins and Underwood around 4 or 5 p.m. on Sunday,
June 23, after having an "in depth" discussion at the
Simmonses' home with John Greene "about working condi-
tions and attitudes of coworkers." Greene had telephoned
At the hearing, Respondent stated that Underwood was "verbally
reinstated" in August and that both Underwood and Robbins were sent
written offers of reinstatement in November. An attorney for the General
Counsel stated at the hearing that the "General Counsel agrees that an offer of
reinstatement was made in writing on November 28, 1978, and that backpay
would only be sought for the period between July 24, 1978, and November 28,
1978."
' The terminations of Robbins and Underwood are also alleged to involve
(derivative) violations of Sec. 8(aX I ) of the Act.
earlier in the day, Simmons said, and asked "to discuss a
problem."
Simmons testified that he discharged Robbins for tardi-
ness, for failure to conform to the dress code, and for a
nonprofessional attitude toward customers, coworkers, and
the profession. He claimed Robbins was late "on numerous
occasions," adding he did not have "any dates and times."
Simmons thought that Robbins was 10 to 15 minutes late on
April 24 and 27 and that he had told Ted Farthing to speak
to Robbins about it. He said he himself had spoken to
Robbins and Robbins' wife about being late. He stated that
he also talked to employees at monthly meetings about being
late. Simmons estimated that Robbins was late 2 days a week
"on the average."'
Owner Simmons said his dress code was "simply a list of
do's and don'ts," which he said derived from the "previous
contractor" and called for barbers to wear clean smocks and
slacks to work. According to Simmons, Robbins always
wore a loud Hawaiian shirt. He said he had made a
"request" of his barbers-"not a demand "-that they wear
matching smocks "so that we would all look professional,
not like we was on a vacation in Hawaii." Simmons
complained that Robbins exhibited a poor professional
attitude by leaving a customer in the chair while he left to go
to the bathroom; by "pushing and cranking" the heads of an
airman and of a child; and by smoking cigarettes and
blowing smoke in the faces of customers. He claimed
Robbins exhibited a poor professional attitude to about half
of his 30 or 40 customers (on the average) each day.
Simmons indicated Robbins' poor attitude was apparent to
coworkers as he created "unrest" and the wrong "frame of
mind" among them by not sweeping the floor "in his turn,"
by trying to "force a person to do something against his
wishes," and "because of his continuous tardiness and
nonconformance with the smock."6
Owner Simmons testified that there were "different
reasons" for terminating Underwood, although he said an
"unprofessional attitude" applied to him also. There were
"several reasons in that category" for the discharge of
Underwood, he said. He thereafter listed these reasons:
Drinking on the job; smoking cigarettes while serving
customers; failing to finish a "taper" (described as "finelin-
ing the haircut on the back of the neck"); and "kicking the
chair around."
Simmons at first said he "never seen him personally"
drink but then stated that he had observed Underwood drink
beer around "four, five, five-thirty" when he (Simmons)
arrived to check out the register. Simmons claimed that he
had seen Underwood "with a cigarette in his jaws" while
serving a customer "on about 3 separate occasions."
Simmons stated that Sunday afternoon Greene had stated
that he "was being physically abused" at the shop and
wanted to "be left alone by other people" so he could "make
his own decisions." Greene also reportedly said at that time
' Underwood said his employment with Respondent began on July 5.
' Simmons said tardiness was a problem with other barbers but claimed it
was more of one with Robbins.
' Simmons claimed Robbins' professional attitude caused a loss of earnings
to the business. Teddy Farthing, who acted as a manager for Respondent and
who was obviously not biased against the Company, indicated that he did not
believe Robbins' behavior caused the loss of a customer.
665
ELEMENDORF & FORT RICHARDSON BARBER CONCESSIONS
that he wanted Underwood to "leave the customers alone
and display a professional attitude." Greene complained,
Simmons said, that Underwood, who worked the chair next
to Greene's, had kicked Greene's chair around with a
customer in it.
Simmons indicated that Greene complained that both
Underwood and Robbins had been bothering him and that
"people" were wasting his time by taking him "away from
his station against his will."' According to Simmons, Greene
was "in a very upset frame of mind" and was concerned that
his job was in jeopardy if he did not join the Union.
Simmons said Greene also mentioned "something to the fact
that Sam Robbins would give . . . seventy-five dollars or
something . . . if needed." Simmons stated that he told
Greene that day that his job was not in jeopardy-that
Greene could join the Union "if he so chose," and that he
would be allowed "draws" for that purpose if needed.
Simmons added, however, that Greene "was not going to be
pushed into something because he did not have the money at
that particular time."
According to Simmons, Greene then offered to write up a
"formal letter" of complaint. Simmons at first indicated that
Greene had written the letter out for Mrs. Simmons to type,
but later stated, "John Greene told her his feelings and she
typed it up." The letter, received as General Counsel's
Exhibit 2, reads as follows:
Dear Lee,
Re: Union Membership
I have been approached by Carol Underwood and Sam
Robbins, many times, often during working hours on
Barber Union membership. I was told that my member-
ship in the Barbers Union would benefit you. I have
been further harassed by telephone calls made during
working hours in reference to me, and by demands that
I attend a meeting and join the Barbers Union. To date
I have signed a union card, but have not paid the
membership fee of $75. Sam Robbins has since stated
that he would pay the membership fee out of his own
pocket. Since I feel at this time that union membership
would not be to my best benefit, please advise me how
to avoid further harassment on this matter and if union
membership is truly a requirement of my employment.
/s/ John F. Greene
Simmons testified that he did not rely on this letter or any
of the facts set forth in it in deciding to terminate
Underwood. He said he did not know why the letter did not
refer to the chair-kicking incident. Simmons claimed that
membership in the Union "doesn't enter my decisions at all,
ever." He said he had operated an "open" shop for the
military in California for 9 years and never had a labor
problem. He said he had offered to advance moneys to two
' Simmons said, "I think [Oreene] said he had received numerous phone
calls from Sam Robbins." Earlier he had said another barber named "Welch
complained to me on numerous occasions that he was being taken away from
his duty station and he had to leave a customer sitting there waiting in a chair
while he would communicate on the phone to Mr. Underwood nd Mr.
Robbins." Asked later whether Welch had told him that union people had
been calling him, Simmons said Welch had not identified "who the people
were." Even later he stated that "Mr. Welch never spoke to me about Mr.
Robbins."
' Robbins stated that a commission barber could take a break "whenever he
barbers so they could join the Union. He claimed that he
never told Robbins, Underwood, or anyone that they could
not use the telephone to discuss union matters. He also
denied telling Robbins, Underwood, and "anyone else" that
they could not discuss union matters during working hours,
including breaks.
Sammie Robbins said he first learned that Simmons would
be taking over the barber concession at a meeting held on
Apnl 10. According to Robbins, Simmons "cut the barbers
down" at this meeting, telling them that they were not doing
their job, that they were not professional, and that the shops
were dirty. Robbins stated that Simmons thereafter cut
wages at two of the shops (the decrease was not put into
effect, he said, because the barbers involved quit) and gave
one barber an impossible task to perform-i.e., close his
shop at 6 p.m. and have his money at another shop at the
same time. Robbins said he began organizing Respondent's
barbers the next day, contacting all of them except Simmons
and Farthing.
Robbins testified that on May 15 he received a telephone
call from Simmons, who accused him of "backstabbing" by
talking about a union. Robbins said Simmons told him
during such conversation that he was not to use the phone
on "his" (Simmons') time, meaning "from seven thirty to
five thirty" while at work. Robbins stated that he told
Simmons that lunch and breaktime were his own time and
that the conversation ended with both "getting mad."'
Robbins said he and his wife met with Simmons that evening
at a restaurant as requested and he was told by Simmons
that "we didn't need the Union." Simmons also told him
that evening not to use the phone for "union business," and
said that he (Simmons) did not like for him to wear the
Hawaiian shirt. Robbins said that he had talked to other
barbers about the Union and that Simmons had not
previously restricted use of the phone. Robbins said that he
thereafter made calls, lasting "maybe a minute" on the
average, to barbers from outside the shop. He said his calls
had been primarily to Underwood, around 10 or 12 in
number he thought, to arrange for meetings with other
barbers. He said he had asked Underwood to arrange for a
meeting with John Greene, but he recalled no complaint
about it. On cross-examination, Robbins said he never left a
customer to make a call but felt "obligated" to answer any
call made to him. Robbins said Simmons mentioned the
wearing of the Hawaiian shirt only the one time, and "I
never wore it again" (though he said he considered it to be
"professional" to do so).'
Carrol Underwood testified that during the 3-week period
(July 5- 24) that he worked for Respondent he had talked
about the Union with the other two barbers with whom he
worked, Doyne Houghton and John Greene. He stated that
Greene, with whom he rode to work, at first agreed to join
the Union but later changed his mind. Underwood said
gets good and ready." He went on to explain that breaks were usually taken
when "you're not busy." He indicated that a barber has "lots of breaktime"
but may on a rare occasion "have to go sit down and drink a cup of coffee."
"[Wl]hen you are busy," he said, "barbers don't take no I -minute break in the
morning, they don't take no 15-minute break in the afternoon, they take just
enough time to eat and they're back on their chairs and they're working."
' Simmons and Farthing, the other barber assigned to work in the Log
Cabin shop, thought Robbins had continued to wear the short shirt up until
the time of the termination. I credit Robbins' statement on this point.
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"everybody used the phone." He used it "occasionally" for
"personal business" such as arranging for a ride home."' He
agreed that Robbins had made calls to him at the shop and
that they had discussed union matters by phone. Underwood
said he did not leave a customer to discuss union affairs.
Asked if he ever received a call while a customer was in the
shop, Underwood replied: "Well, I imagine there would be
and if I had one in my chair I'd say excuse me, I'd answer it
real quick and go back and tend to the customer."
Underwood testified that Simmons never spoke to him about
use of the phone or gave him a warning of any kind. He
agreed on cross-examination that he had called Simmons "a
dirty s-o-b." He said he was terminated, in the presence of
Greene and Houghton, on July 24. "Mr. Simmons walked
in, pointed his finger at me and told me to pack 'em up.""
Underwood said he was not told why he was terminated,
and he did not ask.
Underwood testified that he could not recall ever hitting
Greene with a barber chair but agreed that it could have
happened.' On cross-examination, Underwood said he did
think Greene may have run into his chair, but he was not
sure when it had occurred. He denied ever swinging his chair
around deliberately to strike Greene.
Doyne Houghton, who worked in Building 5 with Carrol
Underwood and John Greene, said Robbins had called him
about three times at home about the Union. He stated no
one ever bothered him about the Union. Neither Robbins
nor Underwood bothered him about anything, he said, and
he made no complaint about either of them.
Alfred Rayes recalled the day when Robbins and Under-
wood were terminated. He said Simmons came into the shop
in building 635 at Fort Richardson and stated to him and
another barber, Thomas Sparks, that "he just now fired"
Robbins and Underwood. He stated Simmons asked Rayes if
he had asked Greene about joining the Union (which Rayes
said he denied) and then "said something about using the
telephone.""
John F. Greene testified that Carrol Underwood "deliber-
ately turned his chair" so the footrest hit one of Greene's
shins. The incident occurred, he said, the day before he
wrote the letter to Simmons. Greene said Underwood had
asked him to meet with him that night to talk "union
business." Greene said he "flatly refused" to attend such a
meeting, and Underwood then appeared to get angry.
Greene said on direct that he let a customer out of his chair
and then walked between Underwood's (center) chair and
another chair toward the cash register when he was hit. He
'" Doyne Houghton said he was not restricted from using the phone; he said
he used it to talk to his wife and to order supplies. Alfred Rayes, a barber
assigned to the shop in building 635, said he had used the phone in his shop
prior to the terminations of Robbins and Underwood to call the other shops
when he was not busy.
" Houghton corroborated Underwood's account of the discharge.
" Underwood thought the swiveling barber chairs in the shop were placed
"maybe 2 or 3 feet apart." He indicated that the footrests "barely clear" when
they are "both together." Simmons said the chairs in the shop were 2 feet wide
and had been spaced 6 feet apart (measuring from the center of one support
pole to the other).
' Simmons said he only inquired about the need for supplies and asked
Rayes if he knew anything about "the pushing and knocking of John Greene
around."
" Greene claimed on cross-examination that he had liked Underwood prior
to the chair swinging incident. He had a "bad feeling" toward Underwood for
believed Underwood hit him purposely, he said, because "he
looked directly at me."'
Teddy Farthing,, who manages Simmons' Log Cabin shop
and acts as "General Manager when he's gone," gave
support to some of Simmons' testimony concerning Robbins.
Farthing worked next to Robbins and stated that Robbins
was a "little bit on the rough side" and a "little bit loud."'
He did not think Robbins ever caused the loss of customers,
however.
Farthing stated that Robbins and his wife were often late;
"[h]e'd come in right at seven thirty or anywhere from ten to
fifteen minutes after the doors were opened." According to
Farthing, Simmons had "no specification on color or stuff
like that" but wanted the barbers to wear smocks. Farthing
believed that Robbins continued to wear "one of these
Hawaiian style shirt deals" ("I guess it's a smock," he said)
until "pretty much" up until he was terminated, but he
conceded that he "didn't pay any attention." Farthing also
stated that Robbins used the phone "like all of us did." He
claimed that Robbins would leave a customer "once in
awhile" to make a phone call, but it was "not something you
just pinpoint," he said.' After Simmons restricted Robbins'
use of the telephone, Farthing said Robbins went "across
[to] the cleaners" to make his calls.
Joseph Main, secretary-treasurer of Barbers' Local 56,
testified that after being contacted by Robbins he met wih
Simmons about three times. Main stated that he first met
with Simmons at the hospital barbershop on April 27 and
told him that a number of Respondent's employees had
expressed the desire that the Union represent them. Main
said Simmons' response was:
Well Mr. Simmons said he didn't care who I was and if
any of his employees joined the Union and he found
who they was they'd be fired immediately.
Main said he then left the premises as requested. Main stated
that he saw Simmons a week or so later and presented
"possible topics of a contract." Simmons' reply at that time,
according to Main, was "the employees were getting those
benefits now so there was no use in discussing it any
further." According to Main, Simmons asked who had
joined the Union, but Main declined to divulge such
information.
Main testified that he was accompanied by the Union's
president, James Newman, at the third meeting with
Simmons. Main said he presented a proposed contract to
Simmons and discussed it after the latter had read it over."
not paying him back for a breakfast that he had bought for Underwood.
Greene testified that Underwood would "bad-mouth" Simmons in front of
customers "because Simmons would not give him any draw." (Simmons
testified that Underwood was always wanting advances "simply to buy
booze.")
" Farthing referred to one incident when a child's parents reportedly
became upset over the fact that Robbins had pushed the child's head forward
in a rough manner. Farthing indicated, however, that barbers get "standard
sit-down" complaints. "[T]hey'll say, well last time he was just a little rough,
or something like that."
,b Farthing said he always answered the phone in his shop.
" Testifying on defense, Simmons agreed that he had met with Main three
times or so. He claimed Main's statement to the effect that Simmons had said
anyone joining the Union would be fired was "a direct lie." Simmons claimed
that he had courteously told Main more than once he could not deal with the
670
ELEMENDORF & FORT RICHARDSON BARBER CONCESSIONS
The Supreme Court in Republic Aviation Corporation v.
N.L.R.B., 324 U.S. 793 (1945); approved a rule which the
Board first articulated in Peyton Packing Co. Inc., 49 NLRB
828 (1943), in working out an appropriate balance between
the employer's right to maintain discipline and employees'
organizational rights under the Act. The Court adopted the
Board's statement of the law to the effect that while
"working time is for work" the promulgation and enforce-
ment of a rule prohibiting union solicitation by employees
during their outside working hours while on the employer's
property was presumptively unlawful. The Court set forth,
in a footnote, the Board's rationale as expressed in Peyton
Packing as follows (324 U.S. 803, fn. 10):
The Act, of course, does not prevent an employer from
making and enforcing reasonable rules covering the
conduct of employees on company time. Working time
is for work. It is therefore within the province of an
employer to promulgate and enforce a rule prohibiting
union solicitation during working hours. Such a rule
must be presumed to be valid in the absence of evidence
that it was adopted for a discriminatory purpose. It is
no less true that time outside working hours, whether
before or after work, or during luncheon or rest periods,
is an employee's time to use as he wishes without
unreasonable restraint, although the employee is on
company property. It is therefore not within the
province of an employer to promulgate and enforce a
rule prohibiting union solicitation by an employee
outside of working hours, although on company proper-
ty. Such a rule must be presumed to be an unreasonable
impediment to self-organization and therefore discrimi-
natory in the absence of evidence that special circum-
stances make the rule necessary in order to maintain
production or discipline."'
Citing its decision in Republic Aviation, the Supreme Court
recently stated in Beth Israel Hospital v. N.L.R.B., 437 U.S.
483, 491-493 (1978):
We have long accepted the Board's view that the
right of employees to self-organize and bargain collec-
tively established by §7 of the NLRA, 29 U.S.C. §157,
necessarily encompasses the right effectively to commu-
nicate with one another regarding self-organization at
the jobsite. ....
Based on its experience in enforcing the Act, the
Board developed legal rules applying the principle of
Union as it would put his contract with the Army and Air Force Exchange
Services in jeopardy. Simmons also denied ever looking at any proposed union
contract.
" The Supreme Court's decision also considered the legality of a rule of the
Le Tourneau Company of Georgia which had prohibited the distribution of
union literature "on the employees' own time and on company owned and
policed parking lots." The Court approved the Board's decision in Le
Tourneau Company of Georgia,. 54 NLRB 1253 (944), as well as in Republic
Aviation Corporation. 51 NLRB 1186 (1943). In a later decision. Stoddard-
Quirk Mfg. Co.. 138 NLRB 615 (1962), the Board stated that the development
of the law regarding oral solicitation "has been attended by less travail than
that regarding distribution of literature," noting that "solicitation, being oral
in nature, impinges upon the employer's interests only to the extent that it
occurs on working time, whereas distribution of literature, because it carries
the potential of littering the employer's premises, raises a hazard to
production whether it occurs on working time or nonworking time."
accomodation. The effect of these rules is to make
particular restrictions on employee solicitation and
distribution presumptively lawful or unlawful under
§8(a)(l) subject to the introduction of evidence suffi-
cient to overcome the presumption. Thus, the Board
has held that restrictions on employee solicitation
during nonworking time, and on distribution during
nonworking time in nonworking areas, are violative of
§8(a)(l) unless the employer justifies them by a showing
of special circumstances which make the rule necessary
to maintain production or discipline.
It is clear from the record here that Simmons did not
restrict use of the telephone in his barbershops until around
May 15 and did so only because he wanted to discourage
union organizing activities. It is also clear that Simmons
intended to ban use of the telephone for any organizing
activities by his barbers whether they were on worktime or
not. Respondent made no showing of the need for such rule,
and its promulgation and application were therefore unlaw-
ful under Section 8(a)(l) of the Act. The rule was overbroad,
and it was enforced in as discriminatory manner. It is
apparent that Simmons did not object to a barber's using the
telephone if union activities were not discussed.
Contrary to Respondent's contention, proof of the exis-
tence of the no-solicitation rule was not limited to the
testimony of Robbins. Farthing and Rayes corroborated
Robbins' testimony that Simmons had restricted use of the
phone. The rule was not issued simply by mistake as in
Detroit Plastic Molding Co., 209 NLRB 763 (1974), a case
relied on by Respondent. Nor is N.L.R.B. v. United
Steelworkers of America, CIO [Nutone, Inc.]. 357 U.S. 357
(1958), another case relied on by Respondent, apposite here.
It is sufficient to say with respect to the latter case, known as
the Nutone decision, that the two no-solicitation rules under
review were valid and had not been shown to have been
unfairly applied."
The dicta cited by Respondent from the court's decision in
Carter Carburetor Corp. v. N.LR.B., 140 F.2d 714, 716 (8th
Cir. 1944)-that adoption of a no-solicitation rule could be
appropriate if the solicitation for union membership on an
employer's premises causes bickering, disputes, ill will, and
lack of harmony among employees-has less application to
Respondent's discriminatory rule here with respect to use of
the company telephones than to the following language used
by the court in holding the Carter no-solicitation rule
unlawful:
" Respondent also cites The May Department Stores Co., d/b/a The May
Company, 136 NLRB 797 (1962). enforcement denied 316 F.2d 797 (6th Cir.
1963), and Montgomery Ward & Co.. 145 NLRB 846 (1964), enf.. 339 F.2d
889 (6th Cir. 1965). both of which involved application of broad no-
solicitation rules to public selling areas of retail department stores at a time
when the stores were making "captive audience" appeals to employees not to
join a union. The Sixth Circuit declined to enforce the relevant portion of the
Board's order in the May decision but enforced the Board's order in the
subsequent Montgomery Ward case. The Board indicated in a footnote in its
Montgomery Ward decision that it "respectfully disagreeld]" with the court's
earlier decision in May and that it would "reaffirm the holding of the Board in
May. " In enforcing the Board's order in May the court distinguished the two
cases by pointing out that the General Counsel had made two factual
concessions not present in Montgomery Ward -that the company speeches
were "noncoercive and protected" and that the May no-solicitation rule was
"privileged because of the nature of the Company's retail store business."
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It purports to forbid solicitation but it was construed to
prohibit all "talk about unions" and union activities. In
the circumstances revealed by the record, the notice
embodying this rule, interpreted as it was, warranted
the Board in finding that it was an unfair labor practice.
The Board found, and we think the evidence warrants
the finding, that the promulgation of this rule and the
posting of the notice were timed and prompted by
motives of hostility toward the union and was designed
to interfere with the employees in their self-organization
and in the selection of a collective bargaining agent.
Respondent's rule here did not simply apply to worktime. Of
course, if the rule was ambiguous in this respect, "the risk of
the ambiguity must be held against the promulgator," the
employer. N.LR.B. v. Harold Miller, Herbert Charles and
Milton Charles, Co-partners, d/b/a Miller-Charles and Co.,
341 F.2d 870 (2d Cir. 1965).
I also hold that Respondent violated Section 8(a)(3) of the
Act. Notwithstanding Simmons' claim that union member-
ship of a barber in his employ was of no concern to him, I
am persuaded that he terminated both Robbins and Under-
wood because of their activities in support of the Union."°
Robbins testified credibly that Simmons had made it clear
to him on May 15 that he did not want his barbers to
consider joining a union and that they were not to discuss
the subject on the phone in his shop whether on a break or
not. Rayes testified credibly that Simmons had indicated to
him and a coworker, Sparks, that Robbins and Underwood
had been fired because of their union activities. Simmons
had also made it clear to Rayes that the telephone in the
shop was not to be used in discussing union matters.' Union
official Main also testified credibly that Simmons had stated
that he would fire any employee who joined the Union.
There is no doubt that Simmons possessed union animus,
and the timing of the discharges point to an unlawful
motivation on Simmons' part. It is also apparent that Lee
Simmons and his wife had a substantial part in the
preparation of the letter signed by Greene on July 23.
Simmons' claim that he did not rely on anything set forth in
the letter in deciding to terminate Robbins and Underwood
is unbelievable."
Simmons impressed me as being one given to exaggeration
and to uttering self-serving statements. There is no credible
evidence that Underwood's drinking ever interfered with his
work as a barber. I am unable to believe that Robbins would
tell a customer, as Simmons claimed, "I'm doing the work,
you just sit still and shut up." Nor do I believe Robbins
would offend a customer "by blowing smoke" in his face, as
Simmons asserted.
The reasons given by Simmons for the discharges were, I
believe, pretextual. If Robbins had a habit of being late, I am
persuaded that he was not terminated for that reason.
I The discharge at least of Robbins was clearly unlawful under the Board's
"Daylin doctrine," which makes it illegal to discipline an employee for
violating an unjustified overbroad no-solicitation rule. See Daylin. Inc.,
Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972),
enforced on other grounds 496 F.2d 484 (6th Cir. 1974), and discussion of the
case in Custom Recovery. Division of Keystone Resources. Inc. v. N. L R.B.. 597
F.2d 1041, (th Cir. 1979).
" I reject Simmons' statements to the effect that he only asked whether
Rayes knew of "the pushing and knocking of John Greene around" and that
he said nothing about the reason for any termination.
Simmons had never fired anyone for being tardy. I credit
Robbins' testimony that he stopped wearing his Hawaiian
shirt when he was asked to do so by Simmons. I do not
believe Underwood purposely swung his chair around to hit
Greene; such occurrence, whether done innocently or
deliberately, did not provoke Underwood's discharge." The
barbers used the telephones in their shops routinely for their
personal business. Simmons did not object until he learned
that Robbins and Underwood were using the phone in
connection with organizing Respondent's employees. It was
not the unprofessional attitude of either Robbins or Under-
wood that caused Simmons to discharge them but rather, I
am convinced, their efforts to organize Respondent's bar-
bers.
CONCLUSIONS OF LAW
I. Lee Simmons and Beverly McKinstry Simmons, a
Partnership, doing business as Elmendorf & Fort Richard-
son Barber Concessions, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Local 56 of the International Association of
Barbers, Beauticians and Allied Industries International,
AFL-CIO-CLC, is a labor organization within the meaning
of the Section 2(5) of the Act.
3. By promulgating and enforcing a no-solicitation rule so
as to prohibit employees at all times from soliciting union
support or membership by telephone on Respondent's
premises, Respondent violated Section 8(a)(1) of the Act.
4. Respondent discriminatorily discharged Sammie Rob-
bins and Carrol Underwood on July 24, 1978, and thereby
violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action,
including offering reinstatement and backpay, designed to
effectuate the policies of the Act. The backpay shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
" Simmons had said that the purpose of the letter was to assist him "in
making a decision to remove an undesirable employee."
" Greene could, of course, have run into Underwood's chair. In any event
the incident, which I believe involved accidental contact, was exaggerated by
Greene. He was not an impressive witness. He was obviously biased against
Underwood. Evidently he leaned toward the Union at first and then decided
to go with Simmons. I doubt that Greene seriously believed that he would
ever be forced to join the Union. Doyne Houghton, who worked in the same
shop with Greene, said he was not bothered about the Union by anyone.
672
ELEMENDORF & FORT RICHARDSON BARBER CONCESSIONS
ORDER"
The Respondents, Lee Simmons and Beverly McKinstry
Simmons, a Partnership, doing business as Elmendorf &
Fort Richardson Barber Concessions, Anchorage, Alaska,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Local 56, International Association
of Barbers, Beauticians and Allied Industries International,
AFL-CIO-CLC, or any other union.
(b) Promulgating or enforcing a no-solicitation rule so as
to prohibit solicitation for union purposes, by telephone or
otherwise, at any time on the Respondent's premises.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Sammie Robbins and Carrol Underwood whole
for any earnings lost as a result of the discrimination against
them in the manner set forth in the section of this Decision
entitled "The Remedy.""
" 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.
" As noted in fn. 2, the General Counsel concedes that valid offers of
reinstatement were made to both Robbins and Underwood and that backpay
(b) Rescind the no-solicitation rule that prohibits solicita-
tion for union purposes by telephone on employees' non-
working time on Respondent's premises.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its facilities in Anchorage, Alaska, copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's authorized repre-
sentative, 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. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
is being sought only for the period July 24-November 28, 1978. Respondent
maintains that an offer was made orally to Robbins in August 1978. The
amount of backpay due can best be determined during the compliance stage.
"' In the event that this Order is enforced by c 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."
673