Emerson Electric Co.

National Labor Relations Board - Board Decisions

Dec 16, 1970

187 N.L.R.B. 294 (N.L.R.B. 1970)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emerson Electric Co., U.S. Electrical Motors Division
and International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 26-CA-3558
December 16, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 25, 1970, Trial Examiner Thomas F. Maher
issued his Decision and Order on Motion to Dismiss
in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor
practices and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the aforedescribed Trial
Examiner's Decision and a supporting 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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.2 The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
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 Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
MEMBER BROWN, dissenting:
In my view the record before the Board establishes
prima facie evidence of the violations alleged in the
complaint and I would remand the entire proceeding
for a reopened hearing to give the Respondent an
opportunity to present its defense to these allegations.
I Contrary to the Trial Examiner's Order, the procedure followed by
him in issuing a Decision dismissing the complaint does not invoke that
portion of Sec 102 27 of the NLRB Rules and Regulations which requires
the aggrieved party to seek review of such action within 10 days of the
dismissal
2 At the hearing, in connection with the allegation that Respondent
unlawfully maintained and gave effect to a discriminatory no-solicitation
rule, the Trial Examiner refused to admit evidence of solicitations during
work hours for causes other than those pertaining to union matters In
doing so , he reasoned that the rule in question was one prohibiting only
union solicitation and hence evidence of permissive solicitation for other
cause was immaterial However, he permitted an offer of proof and a
counter offer of proof from General Counsel and Respondent, respectively,
which have become a matter of record and are before us in these
proceedings Having examined the General Counsel's offer of proof, we are
satisfied that the various examples of permitted worktime solicitation set
forth therein were solely for beneficent causes and , further , even too
isolated to establish disparate application of Respondent's otherwise lawful
rule Although such evidence was clearly admissible , our finding on the
basis of the offer of proof removes any prejudice from the Trial Examiner's
ruling
DECISION AND ORDER ON MOTION TO
DISMISS
PRELIMINARY STATEMENT
THOMAS F. MAHER, Trial Examiner: Upon a charge and
amended charge filed respectively on January 7 and
February 16, 1970, by International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the Union, the Regional Director for Region 26 of
the National Labor Relations Board, herein called the
Board, issued a complaint on behalf of the General Counsel
of the Board on February 20, 1970, against Emerson
Electric Co., U.S. Electrical Motors Division, Respondent
herein, alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (29 U.S.C., Sec. 151, et seq.),
herein called the Act. In its duly filed answer the
Respondent, while admitting certain allegations of the
complaint, denied the commission of any unfair labor
practice.
Pursuant to notice a trial was held before me on April 7,
1970, at Mena, Arkansas, where all parties were present,
represented, and afforded a full opportunity to be heard.
Counsel for the General Counsel presented his case-in-chief
with full opportunity granted to Respondent to cross-
examine witnesses. Upon the conclusion of General
Counsel's case-in-chief counsel for Respondent moved the
dismissal of the complaint herein on the ground that upon
the record made by the General Counsel a violation of the
Act had not been established. Thus with respect to the
discharge of two employees, allegedly for unlawful
discrimination, it was claimed that the evidence in the
record established only that these individuals were
discharged for misconduct and for no other reason; and
with respect to the posting and enforcing of a rule allegedly
unlawfully prohibiting soliciting in behalf of a union it is
claimed that in the posture of the pleadings and record a
legal issue has been presented for determination and can be
resolved at this juncture of the proceeding. Because, with
respect to the alleged discriminatory discharges, I enter-
tained serious doubt that the General Counsel had
established prima facie violations of the Act, and in
deference to Respondent's right in due process not to be
required to enter its defense in the absence of such a
showing, I adjourned the hearing for an indefinite period to
provide an opportunity to study the record.
Because, moreover, I recognize that only a legal issue is
present with respect to the allegedly unlawful notice and its
undisputed enforcement against one employee, William J.
Head, I agree to resolve this issue as a part of my decision
herein.
Accordingly, I requested briefs of the parties to assist me
in the determination of the issues presented by Respon-
dent's motion. Counsel for the Respondent filed a brief
with me on May 4, 1970. Counsel for the General Counsel
187 NLRB No. 33
EMERSON ELECTRIC CO.
has failed to comply with my request in this matter, stating
that while he opposes the Respondent's motion to dismiss
he "perceives no beneficial purpose to be served in filing
any brief or more exhaustive explanation of position at this
stage of the proceeding." While I know of no authority
which would permit me to compel the filing of such
document, I am constrained to note that the interests of the
individuals concerned herein are not best served by a
failure to cooperate as requested.
During the course of the presentation of counsel for the
General Counsel's case-in-chief an effort was made to
establish the illegality of a rule forbidding soliciting on
behalf of a union by adducing evidence of other forms of
solicitation. For reasons discussed fully hereafter I ruled
such evidence to be unrelated to the subject matter at issue.
However, to provide as full a record as the circumstances
would permit I agreed to accept General Counsel's offer of
proof and to likewise accept Respondent's counteroffer of
proof. A written offer of proof was submitted to me after
the close of the hearing and a copy thereof served on
Respondent's counsel. Thereafter Respondent submitted a
counteroffer of proof with a copy filed with counsel for the
General Counsel. These documents have been incorporated
into the record as Trial Examiner's Exhibits 1 and 2.
Upon consideration of the legal documents and the
analysis of evidence advanced by both parties at the trial of
the matter before me, and in Respondent's brief, and upon
a review of the record made by the General Counsel in
support of the allegations of the complaint, including the
offer of proof and counteroffer of proof, in which I assume,
of necessity, the veracity of all witnesses appearing before
me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation with an office and plant
located in Mena , Arkansas , where it is engaged in the
manufacture of electrical motors. During the past 12
months, in the course and conduct of its business
operations, Respondent purchased and received at its
Mena , Arkansas , plant goods and materials valued in
excess of $50,000 directly from points outside the State of
Arkansas, and during the same period it sold and shipped
from the said Mena plant goods and materials valued in
excess of $50,000 directly to points outside the State of
Arkansas.
Upon the foregoing admitted facts I conclude and find
Respondent to be an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, is conceded by all parties to be a labor
organization within the meaning of Section 2(5) of the Act.
295
III. THE CONTESTED ALLEGATIONS OF THE COMPLAINT
It is alleged that on or about November 4, 1969,
Respondent violated Section 8(a)(1) and (3) of the Act by
discriminatorily discharging the following employees:
Donnie G. Abbott and Elmer N. Simpson.
It is also alleged that Respondent violated Section 8(a)(1)
of the Act by maintaining a rule at its plant since on or
about July 7, 1969, and by enforcing it against Employee
William J. Head, on or about October 29, 1969, said rule
admittedly posted since April 30, 1969, and reading as
follows:
NOTICE TO EMPLOYEES
As you all know, it has been our practice not to permit
solicitations of any type or distributions of literature
that interrupt production. The National Labor Rela-
tions Board has frequently ruled that working time is
for work and that an employer may properly prohibit
employees from urging , during working time, other
employees to join a Union.
We will not tolerate any such activity during working
time. We all have a job to do, and to accomplish this
job, we must work together in an atmosphere of
harmony and cooperation, which does not include
badgering, intimidation, soliciting or coercion in any
respect.
IV. PERTINENT FACTS ADDUCED
A. Elmer N. Simpson
On Thursday, October 30, 1969, Employee Elmer N.
Simpson was selected for overtime work on the following
Saturday, November 1, by his foreman, Woody Singleton.
Simpson describes the selection thus:
Well, he came by with this here list of overtime names.
Then he walked by my machine where I was working
and he told me, he says , "Elmer , work Saturday." And
he left, or he started to leave, and I called him back. I
told him that I needed that Saturday off and he said,
"Work" and that's all and he walked off. [Tr. 16]
On the requirement that employees work overtime Simpson
agreed that "if advised by Thursday afternoon that you will
be required to work on Saturday, you must work overtime
on Saturday"; but "if the company is late in advising you
and does not advise you until Friday that you must work
overtime, it does not require that you work overtime."
Simpson wanted the Saturday off to see a doctor in Fort
Smith , Arkansas , 80 miles distance, concerning a sinus
condition, having been directed by his family doctor in
Mena 6 months earlier to have the condition attended to
"whenever he could get off." He had explained this to
Singleton previously but did not mention it on Thursday,
October 30, when he protested the Saturday assignment.
On the following day, Friday, October 31, Simpson asked
Singleton if he and his riding partner, Donnie Abbott,
could come in early on Saturday, at 5 a.m. instead of 7 a.m.,
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without indicating to Singleton, it would appear, that he
wanted to visit the Fort Smith doctor.' Singleton agreed to
this request and then went to Abbott's work station to talk
with him.
Simpson's account of his work activity on Saturday
follows:
A. Well, we went in and started work at 5:00 o'clock
that morning and I was scheduled to run the machine. I
run my machine up to, oh, about 10:00, 10:30, something
like that, and Garland Owens come around and told me
to go back and set up another machine. I told him that
my machine was running all right, that that wasn't my
job, that was his job to set up the other machine. He left
and then Donnie come over and told me he was about
ready to go home because he didn't have much work to
do and then in a little bit here come Garland back and he
told me to go back and set that machine up. He left again
and the third time he come around he told me-Donnie
came over again and was talking with me and Garland
walked up and told me to go set this machine up again
and I told him that that was hisjob, wasn't mine and he
was drawing pay for that and it wasn't me.
I told him that rather than me go set that machine up
that I was already tired and give out from working so
many long hours and that I was going to go to the
house, going to go and punch out and go to the house.
Q. What did he say?
A. He just walked off. He didn't say no more. He just
walked off
Q. So what did you do?
A. I worked a few minutes longer, then I hollered at
Donnie and told him I was ready to go and I went to the
clock and punched out and left.
Q. About what time was this?
A. About 10 minutes to 11:00.
Q. What did you do after you punched out?
A. I went and waited in the car until Donnie came. He
worked a few minutes longer and then he came out
and we left. [Tr. 20-21 ]
Singleton was not at work on Saturday and Charles
Bates, whom Singleton identified as "my foreman," was in
"charge of the line." Nor does there appear to be any
dispute as to Garland Owens' authority as subforeman.
Thus while Simpson disputed Owens' right to assign him
from one machine to another he did state elsewhere in his
testimony that on past occasions Owens had assigned him
to different jobs. I accordingly so conclude and find on the
basis of Simpson's description that Owens possessed the
authority in behalf of the Company to assign work to
employees and was thereby a supervisor within the meaning
of the Act. In any event Simpson left not only in the face of
Owens' direction to him but without reporting his departure
to Bates whom he identified as being in charge.
When Simpson next arrived for work at 7 a.m., Monday,
November 3 with Donnie Abbott their timecards were out
of the rack. A supervisor escorted him to the office of Plant
Superintendent Curtis Powell . Poweii asked him why he
had left on the previous Saturday , to which Simpson states
he replied:
I told him that Garland Owens come over and told me
to set up this machine back behind mine , that mine was
running all right and rather than go set that machine up
that I punched out and went home.
He told me that I was supposed to be setup man and
operator and I told him that I was not drawing the pay
for that. [Tr. 24]
Powell told Simpson that the matter would have to be
decided by "somebody else" and sent him home with
directions to report back on thefollowing day.
On Tuesday , November 4, Simpson was called to Plant
Manager D. H. Blair's office where Powell and Personnel
Manager Harlan Phelps were waiting . Blair asked him why
he had left on Saturday, and Simpson gave him the same
reply he had given Powell . In the course of telling the story
to Blair, Simpson stated he looked for neither Bates, the
subforeman in charge , nor Personnel Manager Phelps
before leaving . Blair then told Simpson that "as bad as we
need help I hate to let you go but I am going to have to let
you go ." He was then directed to Personnel Manager
Phelps' office where he was given papers to sign relating to
his termination . While he did sign one paper relating to his
retirement plan, he refused to sign the other paper
presented him although he did not read it or know what it
was. Simpson has not since worked for Respondent.
B. Donnie G. Abbott
Donnie Abbott, like Simpson, was directed on Thursday,
October 30 by Foreman Singleton to work overtime on
Saturday and he protested the assignment. Abbott's
account of the incident follows:
He came to me where I was working and he said,
"Saturday," and I went and called him back to the line
where I was working and told him that I wanted to be
off so I could get me a pickup truck and he said, "Come
in and start at 5:00," and I told him that I wouldn't have
enough time if I came in at 5:00. Nothing was said so he
went on and told the others to come in Saturday. [Tr.
58]
Abbott appeared for work on Saturday at 5 a.m. as
directed. His activities from that point are best described by
his own testimony, thus:
Well, see, I come in at 5:00 and the machine I was
supposed to work on was tore down. I went to work
with it for about two hours and then I went on over to
see Garland Owens. I went to see him for work and he
went and took and put me on a drill line and then he
came by about 8:30 and I told him I was going to take
off by 11:00 and also went and told him I talked to
Singleton Thursday about it and I was going to take off
and get me a truck. He just went on where he was going.
• s * s
Then about 9:30 I went over to Simpson's machine and
I I draw this conclusion from Simpson's failure to indicate in his
testimony that he so advised Singleton
EMERSON ELECTRIC CO.
told him I was going to take off about 11:00, that there
wasn ' t any work for me to do and that I was going to
buy me a truck and he said he wanted to go, too, so I
worked for a couple more hours and about 11:00 I went
to the tool crib and I came back out and I noticed he
was gone from his machine.
So I went over and asked Carol Guinn where he was at
and she said he had gone home and then I went back
and filled out my tickets and everything and clocked
out and then I went to the tool room where Owens was.
He was over there sharpening a dull and I told him I
was going home and he said he would see me Monday.
I went home and me and Simpson sat at the house a few
minutes and then his wife come by. She picked him up
and went home . I got my family ready and went over to
Mount Ida and bought a truck . [Tr. 59-611
Abbott made no effort before he left to communicate with
Bates who was in charge of the line (supra,) because he
"thought that Owens was my boss that day." Nor did he
make any effort to check with Plant Superintendent Powell
whom he knew to be at work at the time.
When he appeared for work on Monday , November 3,
Abbott, like Simpson , noted that his timecard had been
taken from the rack . After Simpson had been taken to Plant
Superintendent Powell 's office and his case disposed of as
described earlier (supra), Abbott was called in and Powell
asked him why he had taken off early on Saturday. Abbott
told him that he had an understanding with Singleton that
he was going to take off early. Powell then showed him
Singleton's overtime list and pointed to the fact that he was
scheduled for eight hours of work . He told Abbott to go
home and report back on the following day, by which time
a decision in his case would be reached.
On the following morning, November 4, Abbott was
called to Plant Manager Blair's office after Simpson.
Abbott described the meeting:
Well, he called Mr. Simpson in there first ; Mr. Blair,
Mr. Powell and Mr. Phelps went and called Simpson in
first and they went and got through with him and Mr.
Phelps went and called me in . Mr. Blair he went and
asked me how come I took off early Saturday and I told
him that I thought that I had understood with the
foreman that I could take off early and he also had this
overtime list there and he said , "But look at this here.
He must have been aiming for you to work a full eight
hours," and he said , "It looks like we're going to have to
terminate you," and then he asked Mr . Powell I believe
it was if they could think of any reason why they should
keep me and Mr. Powell or Mr . Phelps one said if he
had waited a few more minutes they could have said I
was on break or sich or something and let me come
back . They thought about that and they said no it
couldn 't be that , be too much explaining to do or
something , and then they said , "We're going to have to
terminate you," and they said , "You go check in your
tools," so I went in and checked in my tools.
Q. Then what?
297
A. Then I came back by Mr. Phelps' office and he
asked me if I had any vacation pay coming, retirement
plan coming back and I told him no and he said it would
be Friday before I get my check and he said that he
would give me a good recommendation if I try to get a
job somewhere else. [Tr. 63-641
C. Further Findings, Analysis, and Conclusion
Essential to support for the allegations of discriminatory
discharges set forth in the complaint is evidence that both
Abbott and Simpson were terminated because of their
union membership and activity and not for cause.
In this respect all the evidence clearly discloses that the
two men were members of and active in behalf of the Union
and that Respondent 's officials knew it . There is, however,
no evidence whatever that this membership or activity had
anything to do with Simpson's or Abbott's discharge. Nor
do I perceive any connection between their membership or
activity and the circumstances which surround their
respective discharges from which logical inferences of
discrimination could be drawn . Indeed , if Simpson or
Abbott, or both of them, were actually discharged for cause
neither their union membership or activity or Respondent's
knowledge of it would be of consequence ; for Section 10(c)
of the Act provides in part that "no order of the Board shall
require the reinstatement of any individual as an employee
who has been suspended or discharged , or the payment to
him of any backpay, if such individual was suspended or
discharged for cause ." The validity of Respondent 's reasons
for discharge , therefore , are of prime concern.
1. Elmer Simpson
Reduced to its simplest terms Elmer Simpson's own
testimony makes it obvious that he was discharged for
failing or refusing to do what was required of him . He asked
for the time off, was told he could not have it , and was
aware of the fact that being informed of overtime on a
Thursday he was obligated to work . In the face of this he
chose to take off midway through the workday after having
deliberately refused a work assignment from an individual
who had admittedly assigned him work in the past.
Quite apart from Simpson 's caviller treatment of his
attendance obligations the reasons for which he says he
sought the time off bear scrutiny . Thus in October he asks
time off to go to a specialist whom his family doctor
recommended in May that he visit "whenever he could get
off." Although given the time off on Saturday after 1 p.m.,
Simpson did not go to the doctor , albeit Fort Smith was less
than a 2 -hour drive from Mena, nor has he yet visited this
doctor.
Similarly it was suggested by Simpson and by the
testimony of other witnesses called by the General Counsel
that discharge for walking off the job was contrary to
treatment previously shown Simpson, or, in fact, shown
employees who were absent on the very day that Simpson
walked off. Thus Simpson testified he previously had
refused an overtime assignment in April 1969 prior to the
union campaign and his absence was excused. On that
occasion , as in the instant one, Singleton assigned him
overtime and Simpson objected , but to no avail. Immedi-
ately thereafter Simpson appealed to Personnel Manager
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phelps who, after taking the matter up with Singleton,
approved the absence. I am disposed to conclude that this
incident ended in the fortuitous way that it did not because
it was prior to the union campaign but because Simpson
appealed the foreman's order rather than walk off the job as
he did here.
Similarly Simpson testified that on another occasion he
left early because he was sick and went home and went to
bed. Not only is leaving for reason of sickness a far cry
from Simpson's walkoff here, but one additional circum-
stance was present: when he left for home he asked a fellow
employee, Espen, to report his departure. It is quite
understandable that he received no reprimand when he
returned.
Nor is it significant to the issue here that other employees
failed to report for overtime work at all on the day that
Simpson took off early. Employee John W. Martin testified
that he was scheduled to work overtime on Saturday,
November 1, and, when he told his foreman, Milam he
could not come to work, Milam replied, "Well, be here." He
reported for work but left at 11 a.m., after informing
Milam. As a consequence of his behavior Martin received
the same treatment as had Simpson and Abbott. But at his
Tuesday meeting with Plant Manager Blair, when it was
noted that Martin had not been notified to report for
Saturday overtime work until Friday, October 31, he was
returned to his job without reprimand and was reimbursed
for the time lost. Thus Martin had been exempt from
punishment by the rule quoted by Simpson in his testimony
whereby those notified after Thursday had the option to
refuse to work.
Employee Jess Emry was scheduled to work on Saturday,
November 1, but failed to report because he was ill.
Although he was ill on Friday he worked nonetheless and
intended to return on the following morning. He did not
notify his foreman, Singleton, of his illness, and, when he
returned on Monday, Singleton called him to the office,
reprimanded him for not calling in, and placed in Emry's
folder a copy of the reprimand which dealt with his poor
attendance record which Emry testified was due to
recurring illness.
Emry also testified to an earlier occasion when he took
off early from work without incident. On this occasion he
accidentally ripped the seat out of his pants and made the
obvious decision to leave work. On the way out he asked a
fellow employee to inform Singleton of what had happened.
Singleton was so informed and nothing further was said.
Finally, Wendel R. Davis, a former employee presently
serving in the United States Navy, testified that on
Thursday, October 30, he was directed by Singleton to work
overtime. Davis told Singleton at the time that a tooth was
aching and that he wanted to go to a dentist on Saturday, to
which Singleton replied, "I will see about it." Davis went to
work on Saturday at 7 a.m. and clocked out at 11 a.m.
When he reported to work on Monday his timecard was out
of the rack. He spoke first to Bates, the subforeman, about
it and was referred to Singleton who kept him waiting for a
short time. Meanwhile Davis spoke to McAllister, another
subforeman. In the course of this conversation, without
mentioning why he had left on Saturday, he told McAllister
that he had told Singleton on Thursday that he might have
to go to the dentist. On the apparent strength of this
conversation Davis was excused. The significant element of
the Davis incident was not his toothache but the fact that
he admitted to "curing" it on Friday by home remedy, not
having any trace of it at all on Saturday, and going home on
Saturday to watch football on television. Thus by sheer
deception Davis avoided the fate that befell Simpson and
Abbott.
Upon the foregoing I am convinced that each of the
instances of excused absence differ from Simpson's. Thus
neither Simpson's appeal to higher authority, his and
Emry's illnesses , Emry's torn pants, Martin's belated
notification to work overtime, nor Davis' deception have
any relation whatever to a deliberate walking off of a job
following instructions to work. Accordingly, I conclude and
find that upon Simpson's own testimony he was discharged
for cause and not for reasons of his union membership or
activity, and I further conclude and find that by the
testimony of the employees called by the General Counsel
that the alleged disparate treatment for absence has not
been established, each instance having fit into rules and
categories which were established from Simpson's own
testimony.
2. Donnie G . Abbott
Donnie Abbott's testimony supplies no stronger evidence
than did Simpson's that his discharge was for union
activity.
Abbott, like Simpson, asked on Thursday to be excused
from overtime work on Saturday and when permission was
refused him he left early, nonetheless . I am not persuaded
that Abbott might have been laboring under the misguided
impression that his foreman, Owens, had acquiesced in his
departure by saying that he would see him Monday.
One of Abbott's answers at the hearing is most
significant. When asked if he had "asked Owens' permis-
sion to leave" or did he "tell him he was leaving," he replied
that he told him he was leaving. This, added to the fact that
he neither reported his intention nor appealed Owens' order
either to subforeman Bates , who was in charge, or to
Personnel Manager Phelps, who was at the plant, persuades
me that Abbott deliberately left his work and went home,
knowing full well that on Foreman Singleton's overtime list
his name appeared with all the others scheduled to work a
full 8-hour day.
Nothing contained in Abbott's testimony or in that of the
other witnesses called by the General Counsel and
considered above (supra) persuades me that Abbott was
singled out for disparate treatment or that his discharge was
for any reason other than his deliberate refusal to work as
assigned.
Upon the foregoing I have concluded and found that
Elmer M. Simpson and Donnie G. Abbott were each
discharged for cause and neither were discharged for their
union membership or activity. I shall accordingly grant
Respondent's motion to dismiss so much of the complaint
as alleges the discharge of these two individuals to
constitute violations of the Act.
EMERSON ELECTRIC CO. 299
D. The Notice
It is stipulated that on April 30, 1969, the notice set forth
in detail above (sec III) was posted on Respondent's
employee bulletin board. The evidence adduced by counsel
for the General Counsel2 supports a written warning
admittedly given to Employee William J. Head by
Respondent's supervisors, that "after three complaints from
other employees it was necessary to give Joe Head a
warning for union solicitation on company time during
working hours. Joe was warned that any further repetition
can lead to discharge." Respondent agreed at the hearing
that the issue thus framed presents a clear question of law
which requires no further evidence in refutation. Thus if it
is found that the rule is lawful Head was lawfully
reprimanded for violating it. But if it found to be unlawful
then Head's reprimand would be discriminatory, as alleged
in the complaint.
Because this rule prohibiting union solicitation seeks to
regulate employee activity only during working hours it is
presumptively valid "in the absence of evidence that the
rule was adopted for a discriminatory purpose." 3 But there
is no evidence in this record of the circumstances
surrounding the adoption of the rule other than the fact
that the posting of it coincided generally with the beginning
of the Union's campaign in April.
Were I not precluded by Section 10(b) of the Act4 from
considering such a coincidence as evidence of an unfair
labor practice, I would nonetheless be reluctant to accept a
mere speculation as a substitute for a complete lack of
evidence Indeed, pursuing the Section 10(b) theory to its
logical conclusion brings us squarely to the Supreme
Court's guide to the disposition of such matters in the Bryan
Manufacturing Company5 case. In the first place, the
General Counsel has recognized the significance which
Section 10(b) bears to the notice in this case, for paragraph
7 of the complaint establishes July 7, 1969, a date 6 months
prior to the January 7, 1970, issuance of the charge, as the
critical date in the period of the notice's maintenance; and
counsel so identified the date at the hearing.
In this posture, therefore, to consider the allegedly
offending notice beyond the limits which the statute and
the complaint set would place the gravity of the conduct in
comparative relation with the conduct considered by the
Supreme Court in Bryan. There it was determined that
Section 10(b) so operated as to preclude the finding of a
violation of the Act "which is inescapably grounded on
events predating the limitations period."6 In that case the
offending conduct was grounded on the execution of a
collective agreement with a union which, at the time of the
execution, did not represent a majority of the employees in
the unit If such was the reluctance of the Supreme Court to
find a violation in an area so basicly concerned with the
representative rights of employees, it would be ludicrous
indeed for me to dignify such speculations as may attach to
the April posting of the notice here as adequate support for
a finding that the notice was unlawfully adopted then or
unlawfully maintained on and after July 7. And this is
particularly so because the record made by the General
Counsel in support of the allegation of illegal maintenance
fails to supply any evidence that between July 7, 1969, and
October 28, the notice was "maintained," to use the
Supreme Court's criteria, "for a discriminatory purpose." 7 I
find, therefore, that no evidence of discriminatory applica-
tion or maintenance of the notice has become manifest, in
point of time, until October 28, 6 months after it was first
posted. For if some untoward incident relating to the
substance of the notice had occurred during this interven-
ing period, it would be fair to say that General Counsel
would have supplied the evidence of it.
Returning to the presumptive validity of a no-solicitation
notice, the precise character of this notice must be
considered. This is not a "no-solicitation" notice in the
strict sense. In full effect, if not in fact, this notice is a "no-
union solicitation" notice, unlike the classic type of rule or
notice heretofore considered by the Board.8
There is a distinct difference between the two. In the
usual notice considered by the Board, solicitations of any
and all kinds are specifically prohibited and solicitation in
behalf of a union is the critical element of the overall
prohibition. Here, however, the rule is equally explicit in
the opposite direction. No-union solicitation is to be
permitted for the reasons stated (supra, sec. III).
My attention was invited, of course, to the all-inclusive
sweep of the first sentence of the notice wherein reference is
made to a policy of prohibiting all solicitation. I am not
disposed to accentuate form over substance in such
matters, however, when a commonsense reading of the
notice in its complete context clearly and simply conveys
the solitary message that it prohibits solicitation for or
against a union and nothing else.
At this juncture it becomes necessary to consider a ruling
made by me at the hearing as it relates to my earlier finding
that no evidence of unlawful maintenance was adduced
and that the notice is a distinctly different variety of no-
solicitation rule.
2 The testimony of Employee William J Head, Paul Guinn, and Gerold
Potter
3 Republic Aviation Corporation v N L R B, 324 U S 793, 803, quoting
the Board's decision in Peyton Packing Company, 49 NLRB 828, 843
4 Sec 10(b) of the Act provides in pertinent part as follows
Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board, or any
agent or agency designated by the Board for such purposes,
shall have power to issue and cause to be served upon such
person a complaint stating the charges in that respect, and
containing a notice of hearing before the Board or a member
thereof, or before a designated agent or agency, at a place
therein fixed, not less than five days after the serving of said
complaint Provided, that no complaint shall issue based upon
any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board and the service of a
copy thereof upon the person against whom such charge is
made, unless the person aggrieved thereby was prevented from
filing such charge by reason of service in the armed forces, in
which event the six-month period shall be computed from the
day of his discharge
Local Lodge No 1424, International Association of Machinists,
AFL-CIO [Bryan Manufacturing Company] v N L R B 362 U.S 411
6 362 U S at 422
7 Republic Aviation Corporation v N L R.B. supra
6 Cf Peyton Packing Company, supra, Republic Aviation Corp v
N L R B, supra, Stoddard-Quirk Manufacturing Co, 138 NLRB 615, Ward
Manufacturing, Inc,, 152 NLRB 1270, 1277, The May Department Stores
Company d/b/a Famous-Barr Company, 174 NLRB No 109, Universal
Cigar Corporation, 173 NLRB No 129, enfd denied as to no-solicitation
notice 425 F 2d 867 (C A 5)
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel sought to adduce
evidence that solicitations had been permitted thoughout
Respondent's plant for a variety of purposes, thus seeking
to establish that enforcement of the rule against employee
Head for soliciting in behalf of the Union constituted a
disparate enforcement of the rule. On my own motion I
excluded this evidence and permitted counsel for the
General Counsel to submit a written offer of proof as to this
subject matter. I likewise permitted counsel for Respondent
to submit, after reviewing General Counsel's offer, a
counteroffer of proof.9
The notice, as I view it, prohibits solicitation in behalf of
or against a union and nothing else. It is therefore
completely irrelevant to the issues presented here that
solicitations were made for blood or collections were taken
up for flowers, deceased employees or their relatives,
Christmas and birthday presents, or for employees or
families who were financially disadvantaged, all being the
"beneficant acts" referred to by the United States Court of
Appeals for the Tenth Circuit in Serv-Air, Inc. v. N.L.R.B.
(395 F.2d 557), and the "isolated instances of other
permitted solicitations" recently approved by the Board in
Atkins Pickle Company, Inc. (181 NLRB No. 144). I
accordingly reaffirm my ruling and reject the General
Counsel's offer of proof as not relevant to the notice alleged
in the complaint.
Returning now to a consideration of the rule which I find
to exclusively apply to union solicitation, it must now be
determined whether the presumptive validity still attaches.
This, it would seem, has been determined by the Board in
Serv-Air, Inc., 161 NLRB 382. There, so much of the notice
as prohibited solicitation by employees stated as follows
(161 NLRB at 389):
No person will be allowed to carry on union organizing
activities on the job. Anybody who does so and who
thereby neglects his own work or interferes with the
work of others will be subject to discharge.
This the Board held in its initial decision to be invalid, but
not on its face, as must be established here. Rather, the Board
held that "under the circumstances here present" the rule
was discriminatory; the circumstances being the multiplici-
ty of unfair labor practices found and the permitting of
other types of solicitation. Upon review the court 10 held
that the rule had not been promulgated for a discriminatory
purpose but remanded it for further evidence of discrimina-
tory enforcement and application. Upon remand the Board
concurred" in the court's conclusion and upon the further
evidence taken also concluded that the rule had not been
discriminatorily maintained. Thus it would appear that a
rule exclusively prohibiting union solicitation is no less
presumptively valid than the usual no-solicitation rule.
From all of the foregoing and from the circuit court's
specific holding12 I would conclude and find, therefore,
9 As previously noted , these documents appear in the record as TX
Exhs I and 2, respectively
10 395 F.2d 557, cert den 393 U S 840
11 175 NLRB No 128.
12 Fn 10, supra
that a notice restricted to union solicitation partakes of the
usual presumption of validity.
Furthermore, the realities of industrial life make such a
presumption an operational necessity. The justification for
the rule appears in the Supreme Court's decision in
Republic Aviation, supra, wherein the Court, quoting the
Board's Peyton Packing Co. rule that "working time is for
work," set forth the accommodation that must be reached
between employee and employer rights; namely that it
depends on an adjustment of those employee organization
rights and "the equally undisputed right of employers to
maintain discipline in their establishments."
It is to this maintenance of discipline that we must look,
therefore, in assessing the validity of the rule. No one can
seriously contend that collections for a "sunshine fund" or
the alleviation of the misfortunes or bereavement of an
employee are the sort of activities that generate heated
contention and dispute. On the other hand, the history of
modern labor relations clearly demonstrates that the
subject of unions and the solicitations in behalf of unions
can and most certainly do generate divergent points of view
among the working fraternity, even to the point of loud
debate and fisticuffs. Thus it would appear that one type of
solicitation is conducive to an impairment of order and
discipline and the other is not. To the extent, then, that an
employer, in the exercise of his established right to maintain
discipline,13 sees fit to proscribe only the variety of
solicitation that actually tends to impair discipline without
interfering with the variety that does not, I fail to see that
such an employer thereby rebuts the presumption that his
actions are legal. Upon all of the foregoing, therefore, I
would conclude and find that the maintenance of the notice
herein was a valid and proper exercise of Respondent's
"right to maintain discipline in [his] establishment" and that
the enforcement of the rule with respect to employee Head
was proper in all respects.
I accordingly dismiss the complaint insofar as it alleges
the maintenance and enforcement of the quoted no-
solicitation notice to constitute a violation of the Act, and
insofar as it alleges the terminations of employees Donnie
G. Abbott and Elmer N. Simpson to constitute violations of
the Act, and
It is hereby ordered, pursuant to Section 102.25 and
102.35(h) 14 of the Board's Rules and Regulations, Series 8,
as amended, that Respondent's Motion to Dismiss the
Complaint be granted, and that the complaint be accord-
ingly dismissed in its entirety.
IT IS FURTHER ORDERED that unless , pursuant to Section
102.27 of the aforesaid Rules and Regulations, Counsel for
the General Counsel files with the National Labor
Relations Board a request for review of the action taken
herein within 10 days from the date of this Order the case
shall be closed.
13 Republic Aviation Corp v. N.LR B, supra
14 United Steelworkers of America, AFL-CIO, and Local Union No 2140
(United States Pipe and Foundry Co), 129 NLRB 357, enfd . 298 F.2d 873
(C A 5); Cherry Rivet Co, 97 NLRB 1303, fn I