Essex International, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1974

211 N.L.R.B. 749 (N.L.R.B. 1974)

ESSEX INTERNATIONAL, INC. 749
Essex International , Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Petitioner.
Case 7-RC-1 1513
June 19, 1974
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Stipulation for Certification Upon
Consent Election executed on January 8, 1973, an
election by secret ballot was conducted on February
1, 1973, under the direction and supervision of the
Acting Regional Director for Region 7, among the
employees in the appropriate unit. At the conclusion
of the election, the parties were furnished with a tally
of ballots which showed that of approximately 423
eligible voters, 395 cast ballots of which 155 were for,
and 238 against, the Petitioner, and 2 were chal-
lenged. The challenged ballots were not sufficient to
affect the results of the election. Thereafter, the
Petitioner filed timely objections to conduct affecting
the results of the election.
The Acting Regional Director, on February 14,
1973, issued a notice of hearing on objections to
resolve the issues raised by said objections. Pursuant
thereto, a hearing was held before Hearing Officer
Sandra J. Rice and, thereafter, on May 24, 1973, the
Hearing Officer issued and served on the parties her
Report on Objections. In her report, the Hearing
Officer recommended to the Board that Petitioner's
Objections 3, 4, 5, 6, 7, and 9 be overruled in their
entirety, that the withdrawal of Objection 10 be
approved, and that Objections 1, 2, and 8 be
sustained. She further recommended that the results
of the election be set aside and that the case be
remanded to the Acting Regional Director for the
purpose of permitting him to conduct a second
election. Thereafter, the Employer filed timely
exceptions to the Hearing Officer's report and a brief
in support thereof, and the Petitioner filed cross-
exceptions together with a brief in support thereof
and in reply to the exceptions filed by the Employer.'
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at its facility located at
Atlanta, Michigan; but excluding office clerical
employees, technical employees, engineering em-
ployees, professional employees, confidential
employees, foremen, assistant foremen, timekeep-
ers, watchmen, watchmen-custodians, truckdri-
vers, senior inspectors, leaders, dispatchers,
guards and supervisors as defined in the Act.
5. The Board has considered the Hearing Offi-
cer's report and the Employer's exceptions thereto,
and the briefs. In the absence of valid exceptions, we
adopt pro forma the Hearing Officer's recommenda-
tions as to overruling Objections 3, 4, 5, 6, 7, and 9,
and the withdrawal of Objection, 10. However, we do
not agree with the Hearing Officer's recommenda-
tion that Petitioner's Objections 1, 2, and 8 be
sustained, and that the election therefore be set aside.
Objection 1 alleges that the Employer's no-solicita-
tion and no-distribution rules are invalid in that they
could be interpreted to prevent union solicitation
and/or distribution by employees during their paid,
nonworking time. These rules, which appear in the
Employer's current "Policies Practices Manual," set
forth the following prohibitions:
4. Solicitation for any cause during work time
without permission.
5. Distribution of literature during, working
hours or in work areas without permission.
Also appearing in the manual in a separate section
from the above under the heading "SOLICITA-
TIONS" is a statement indicating that "distribution
of any literature in work areas or during work time is
not permitted." No evidence, however, was presented
to show that the rules were ever enforced in such a
manner as to prevent solicitation or distribution
during nonworking time.
Without referring to the section on SOLICITATIONS,
the Hearing Officer found the no-distribution rule to
be invalid as the reference to working hours could be
construed by employees to prohibit the distribution
of literature during nonworking breaktime. In addi-
tion, the Hearing Officer found that the no-solicita-
I Sec. 102.69 of the Board 's Rules and Regulations provides that a party complaint case . Accordingly, we have not considered Petitioner 's "cross-
opposing previously filed exceptions may file an "answering brier , to those exceptions" concerning the Hearing Officer's recommendation with respect
exceptions . However, Sec. 102 .69 does not provide for the filing of cross- to Petitioner 's Objection 6. We have considered the portion of Petitioner's
exceptions where the representation case is not consolidated with a brief which is in answer to the Employer 's exceptions.
211 NLRB No. 112
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion rule, which prohibited solicitation during "work
time," was also invalid on the grounds that employ-
ees might reasonably construe the rule as prohibiting
them from soliciting for a union during their paid,
nonworking time . The Hearing Officer, finding both
rules to be, at best, ambiguous, concluded that the
risk of ambiguity must be held against the Employer,
and thus she sustained the objection. We do not
agree.
The Board from time to time has been confronted
with situations in which prohibitions against solicita-
tion or distribution during "working hours" or
during "working time" have been challenged. In our
view, there is a clear distinction to be drawn between
the terms "working hours" and "working time." The
term "working hours" connotes the period of time
from the beginning to the end of a workshift. Thus,
the use of that term in a no-solicitation or no-
distribution rule is reasonably calculated to mean
that employees are prohibited from engaging in any
form of union solicitation or distribution of union
literature from the time they "clock in," or begin
their workshift, until the time they "clock out," or
end their workshift. By contrast, the term "working
time" or "work time" connotes the period of time
that is spent in the performance of actual job duties,
which would not include time alloted for lunch and
break periods. Thus, the use of that term in a no-
solicitation or no-distribution rule would clearly
convey the meaning to employees that they were free
to engage in solicitation or distribution during lunch
and break periods which occur during their "working
hours."
In light of the above distinction, we shall consider
rules which prohibit solicitation or distribution
during "working time" or "work time" to be valid on
their face. On the other hand, those rules which
prohibit solicitation or distribution during "working
hours," unless their impact on lunch and breaktime is
clarified, unduly restrict employees' rights under
Section 7 of the Act to engage in union solicitation or
distribution during their nonworking time.2
A rule prohibiting solicitation during "work time"
or "working time" is, in our opinion, sufficiently
clear to employees to justify requiring the party
attempting to invalidate the rule to show, by extrinsic
evidence, that, in the context of a particular case, the
rule was communicated or applied in such a way as
to convey an intent to restrict or prohibit solicitation
during breaktime or other periods when employees
are not actively at work. On the other hand, in our
opinion, a rule prohibiting solicitation during "work-
ing hours" isprima facie susceptible of the interpreta-
tion that solicitation is prohibited during all business
hours and, thus, invalid. We would therefore require
the employer to show by extrinsic evidence that, in
the context of a particular case , the "working hours"
rule was communicated or applied in such a way as
to convey an intent clearly to permit solicitation
during breaktime or other periods when employees
are not actively at work.
In the instant case, the no-solicitation rule prohib-
its soliciting during "work time," and is thus valid. It
is arguable that the no-distribution rule, standing
alone , is invalid because of its prohibition of
distribution during "working hours." However, after
considering that rule, together with the Employer's
no-solicitation rule referring to "working time" and
the separate section on SOLICITATIONS, which sets
forth the Employer's rule against distribution during
working time, we are unable to conclude that
employees would consider the single reference to
working hours to mean something other than
working time.
Our conclusion in this regard is consistent with the
record evidence as to the actual understanding
employees had of the rule. The evidence here makes
it abundantly clear that the rules could not possibly
have conveyed an intent to restrict solicitation or
distribution at times when employees were not
actively at work. At the time that they were first
hired, employees were told either by the plant
manager or by the plant superintendent that non-
working breaktime was their own to do with as they
wished, and there is employee testimony that the
"working hours" rule was understood to mean "that
you can solicit during your off times, such as your
break time, your lunch time , before and after
work. . . ." The record discloses that, during the
current campaign, employees openly engaged in
union solicitation without interference or discipline
during their breaktimes, lunchtimes, and before and
after work. There was thus no improper interference
with employees' rights, and no basis for setting aside
the instant election on this ground. Having found
that both the no-solicitation and no-distribution rules
are valid, we find no merit in this objection.
Objection 8 alleges that the Employer conducted a
captive audience speech, in violation of its own no-
solicitation rule, without permitting Petitioner an
equal opportunity to reply. Although the Employer
conducted speeches 39 and 25 hours before the
election, there is no evidence indicating that Petition-
er requested an opportunity to reply. However, the
2 Accord: The Singer Company, Friden Division, 199 NLRB No. 162. The Singer rather than Avon to the extent that they are inconsistent.
Hearing Officer relied on Avon Convalescent Center, Inc, 200 NLRB No. 99, Chairman Miller, who participated in the Avon decision, has reconsidered
as being controlling with respect to rules incorporating the words "working this area of the law, and to the extent that the decision in Avon is
time." Member Kennedy, who did not participate in Avon, would follow inconsistent with his view as expressed herein , he would overrule it.
ESSEX INTERNATIONAL, INC. 751
Hearing Officer, relying on the Board's decision in
Livingston Shirt Corporation,3 sustained the objection
in view of her finding that the Employer promulgat-
ed an overly broad no-solicitation rule. In view of
our finding above that the Employer's no-solicitation
rule is valid, we find no merit in this objection.
Objection 2 alleges that the Employer made several
promises of benefit to employees during speeches
made to them on January 30 and 31, 1973.4
Specifically, the alleged promises were: (1) that the
employees would receive whatever benefits a union
could obtain without having a union; and (2) that
any favoritism that existed in the plant would be
corrected. As to (1), employees were informed during
a speech made on January 31, 1 day before the
election , that the Company would be "glad" to pay
what it could afford, but that it would "never, ever,
give a union more . . ." than the employees could
obtain on their own. The Employer also told them
that the Union, being realistic, would probably not
make wage demands in excess of industry standards.
The employees were also told that the Company had
contracts with many unions, and that it would
bargain in good faith if the Petitioner won the
election. The Hearing Officer found that the Em-
ployer's statement regarding what it would "give a
union" went beyond "hard bargaining," and that it
was designed to convince employees of the futility of
union representation. Therefore, the Hearing Officer
sustained this portion of the objection. We do not
agree.
We do not believe that statement, when viewed in
the context of the Employer's entire speech, demon-
strates to employees the futility of union representa-
tion. This comment was made in the context of other
statements to employees which were designed to
show that the Employer, in order to protect its
competitive position, would not yield to any union
demands which might require wage increases in
excess of the industry standard. There was no
indication, however, that the Company would not
bargain in good faith if the Union won the election.
As to (2), employees were informed during the
same January 31 speech that the Company would not
stand for favoritism, and supervisors present in the
room during the speech were warned that they would
be discharged if they engaged in any such favoritism.
These statements were apparently included in the
speech because of comments made by two employees
on January 30 that they were voting for the Union
only because of favoritism on the part of their
foreman. The Employer referred to these two
employees in the January 31 speech, but attempted
to show its longstanding opposition to favoritism by
making reference to action taken against favoritism
at another plant. In sustaining this portion of the
objection the Hearing Officer found, but we do not
agree, that the above remarks amounted to an
explicit promise to correct employee grievances in
regard to favoritism, a promise never before made.
We believe instead that the statement made was
designed simply to call attention to an existing policy
adopted in advance of the election and without
regard to it. In view of the above analysis, we find no
merit in Objection 2.
Accordingly, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and that said
labor organization is not the exclusive representative
of all the employees, in the unit herein involved,
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
MEMBER PENELLO, Concurring:
I agree with the conclusion reached by Chairman
Miller and Member Kennedy that there are no
grounds for setting aside this election. However, in
overruling Objection 1, I would not rely on all of the
same factors relied on by my colleagues in the
majority.
Chairman Miller and Member Kennedy have
stated that, in light of the clear distinction to be
made between the terms "working time" and
"working hours," they will henceforth consider all
rules which prohibit solicitation or distribution
during "working time" or "work time" to be valid on
their face. In addition, they will now consider all
rules which prohibit solicitation or distribution
during "working hours" to be invalid "unless their
impact on lunch and breaktime is clarified." While I
agree with the above distinction between the terms
"working time" and "working hours," I believe that
it is necessary for me to set forth in a separate
opinion what I believe an employer must do in order
to satisfy his obligation to clarify rules which make
reference to the term "working hours."
My colleagues in the majority appear to be willing
to consider, among other things, employee under-
standing of a rule in determining whether the rule is
violative of the Act. I, however, am unwilling to
consider such subjective considerations, and will
require that the clarification of a facially invalid rule
3 107 NLRB 400, 409.
4 The Hearing Officer found no merit in one such promise involving a
prospective wage increase . No exceptions were filed with respect to this
finding.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must come from the employer alone, either by a
written or an oral explanation to all employees. Any
other course would place an employee in the position
of having to test the rule in order to determine its
application. Such a course, in my opinion, would
inhibit employees and restrict their rights under
Section 7 of the Act to engage in union solicitation or
distribution during their nonworking time.
In the instant case, I would find, in agreement with
my colleagues in the majority, that the no-solicitation
rule referring to "working time" is valid. I would also
find the no-distribution rule invalid, standing alone,
because of its prohibition of distribution during
"working hours." However, as noted by my col-
leagues in the majority, the Employer clarified what
it meant by "working hours" in a separate section on
SOLICITATIONS, which sets forth the Employer's
rule against distribution during "working time." In
view of this written clarification and the valid no-
solicitation rule referring to "working time," I would
find, in agreement with Chairman Miller and
Member Kennedy, that employees would not consid-
er the single reference to "working hours" to mean
something other than working time. Unlike my
colleagues in the majority, however, I would not
consider any of the evidence offered herein to show
employees' subjective understanding of the rule.
Furthermore, I am not convinced, as are my
colleagues , that the record adequately supports the
conclusion that the Employer communicated orally
to employees at the time they were hired that the
facially invalid no-solicitation rule did not apply
during times when employees were not actively at
work.
MEMBERS FANNING AND JENKINS , dissenting:
This case involves, among other issues, the ques-
tion of whether the Employer maintained rules
against solicitation and against distribution of
literature which unlawfully circumscribed its employ-
ees' utilization of these methods of communication
of their views on union organization to each other
while at their place of work.
The basic question in any case such as this is
whether the employer's rules limiting employees'
right to distribute literature and otherwise communi-
cate among themselves concerning the advantages or
disadvantages of union organization reflect a proper
"adjustment between the undisputed right of self-
organization assured the employees under the Wag-
Republic Aviation Corporation v. NL R.B, 324 U S. 793, 797-798.
6 See , e.g., Walton Manufacturing Company, 126 NLRB 697; Stoddard-
Quirk Manufacturing Co., 138 NLRB 615.
r Peyton Packing Company, 49 NLRB 828, 843.
8 N. L R. B v. Magnavox Company of Tennessee, 414 U.S. 1109 (1974),
wherein the Court held that an employer and a union could not
contractually agree to waive the right of employees to distribute literature in
support of or in opposition to the union.
ner Act and the equally undisputed right of employ-
ers to maintain discipline in their establishments." 5
In determining whether particular no-distribution or
no-solicitation rules reflect such a proper adjustment,
the Board has long applied the presumption that a
rule which proscribes employee solicitation or
distribution activities only during the employee's
working time has been promulgated for the legiti-
mate purpose of maintaining order, discipline, and
production .6 The basis of the presumption is the
"working time is for work" principle.7 As a necessary
corollary to this principle , the Board also presumes
that those rules which go beyond regulation of
employees' working time to be invalid , thus giving
scope and substance to the employees ' statutory right
of self-organization . As the Supreme Court has said,
The place of work is a place uniquely appropriate
for dissemination of views concerning the bar-
gaining representative and the various options to
the employees . So long as distribution is by
employees to employees and so long as the in-
plant solicitation is on non-working time , banning
of that solicitation might seriously dilute § 7
rights . For Congress declared in § 1 of the Act it
was the policy of the United States to protect the
exercise by the workers of full freedom of
association , self-organization and designation of
representatives of their own choosing . 29 USC §
151.8
The presumptions of validity and invalidity carry
with them important consequences respecting the
enforcement of the rules against employees who
ignore their strictures. Thus, discharge of an employ-
ee for soliciting union membership in violation of a
presumptively valid rule will be presumed to be
motivated not by the nature of the activity, but by
the fact that the rule was violated. Of course, the
existence of the rule cannot and does not serve as a
defense to an 8(a)(3) violation if the General Counsel
can prove that the real reason for the discharge was
the nature of the activity rather than the violation of
the rule itself.9 But the point is that the presumption
of validity attaching to a particular rule carries with
it a presumption of regularity as to its enforcement
and changes the nature of the burden of proof
carried by the General Counsel in such a case.10
Moreover, the presumption of validity does more
than that. It operates in practical effect to eliminate
9 See, for example , Montgomery Ward & Co., Incorporated, 202 NLRB
978
10 In the absence of a valid rule restricting such activities , the discharge
of an employee for engaging in union solicitation even during working
hours establishes a prima facie case that the discharge was for the nature of
the activity . See Daylin Inc, Discount Division d/b/a Miller's Discount Dept.
`Stores, 198 NLRB No. 40; J. L Hudson Company, 198 NLRB No. 19; Troy
C. Friend d/b/a Friend Lumber Company, 121 NLRB 62. The Employer can
ESSEX INTERNATIONAL, INC.
the requirement that the employer come forth with
objective evidence that the rule is in fact necessary to
maintain discipline, production, and order. Because
of this practical effect, and because such rules tend to
operate to circumscribe the exercise of rights given to
employees to discuss self-organization at their place
of work, the Board has a special obligation to
scrutinize carefully no-solicitation and no-distribu-
tion rules to the end that they do not frustrate "the
dominant purpose of the legislation [which] is the
right of employees to organize for mutual aid without
employer interference."11 To this end, the Board
applies the well-settled rule that any ambiguity in the
rule must work against the promulgator of the rule
rather than against the employees to whom it
applies.12
Applying these principles to this case, we are of the
opinion that the Hearing Officer correctly concluded
that both the no-solicitation rule and the no-distribu-
tion rule were improperly drawn and unduly infr-
inged upon employees' exercise of the right of self-
organization.
The rules published in an employee handbook were
among 12 rules, violations of which were stated to be
cause for disciplinary action. Rule 4 prohibits
"solicitation for any cause during work time without
permission." Rule 5 prohibits "distribution of litera-
ture during working hours or in work areas without
permission." There is no suggestion that these rules
single out union solicitation and distribution of
literature as restricted activity.
Our colleages find that the no-solicitation rule (rule
4 is presumptively valid because the prohibition is
limited to "work time," contrasting that term with
"working hours" which would make the rule pre-
sumptively invalid, in their view, as impinging upon
an employee's nonworking time. In making this
distinction between "working time" and "working
hours" our colleagues find it necessary to overrule
Avon Convalescent Center, Inc., 200 NLRB No. 99,
wherein the Board held in effect that there is no
magic in the phrases "working time" and "working
hours" whereby one necessarily defines a clear
intention not to restrict employee organizational
activity during the employees' nonworking time and
the other necessarily conveys an intention to infringe
upon employee nonworking time. In short, the Board
held that both phrases standing alone, convey
ambiguous meanings to the employees, and that a
of course rebut this case by establishing that the discharge was for failure to
perform paid duties, disrupting the work of others , or the like. Where the
employer has promulgated a valid rule, however , the rule is normally a
defense to a discharge for activities in violation of the rule.
11 Republic Aviation Corporation v. N. L. R. B., supra at 798.
12 See , for example , N.LR.B. v. Harold Miller, et at., 341 F .2d 870, 874
(C.A. 2), enfg . 148 NLRB 1579.
13 Avon Convalescent Center, Inc. v. N. L. R. B., 490 F.2d 1384(C.A. 6), 85
753
rule against solicitation "during working time .. .
for any cause in any area of the plant" was
impermissibly broad. This finding, among others,
was affirmed by the court of appeals, "as compelled
by the evidence." 13
We perceive no reason for overruling that decision.
The fact of the matter is that the phrase "working
time" may be understood as including all time from
the beginning to end of a work shift including paid
breaktime, lunchtime, and cleanup time. An employ-
er who does not intend such a broad interpretation of
the phrase can easily incorporate in the statement of
the rule a disclaimer that the restriction on organiza-
tional activities is intended to apply to such time. His
failure to do so necessarily imposes on employees the
risk of violating the rule if they engage in such
activities during such times that rule may not
lawfully, but arguably does, reach. Imposing such
risk upon employees is itself an interference with
their exercise of Section 7 rights. We therefore
continue to be of the view that use of the phrase
"working time" standing alone does not clearly and
unambiguously convey to employees the valid intent
and purpose of restricting their organizational
activities only during the time they are required to be
working at their work stations.
The foregoing applies, as our colleagues acknowl-
edge, with even greater force to the phrase "working
hours," as used in the Employer's no-distribution
rule (rule 5). Plainly that rule is stated in terms that
the majority concedes arguably prohibits distribution
during nonworking time. Their concession in this
regard demonstrates that the terms in which the rule
is stated renders the meaning of the rule ambiguous.
Since, as already noted, "the risk of ambiguity must
be held against the promulgator of the rule rather
than against the employee who must abide by it," 14
the rule is invalid.
The ambiguity is not eliminated by another
statement in another section of the handbook, under
the heading "SOLICITATIONS" that "distribution
of any literature in work areas or during work time is
not permitted." This statement does not appear as a
rule subjecting employees to discipline for its
violation. An employee desirous of distributing
literature in nonwork areas during paid breaktime
could never be sure which statement of the rule
would be used by his employer in judging whether he
has violated rule 5. It seems to us that this different
LRRM 2656. The Singer Company, Friden Division, 199 NLRB 1195, which
our colleagues prefer to the Avon Convalescent Center decision, did not even
involve the question of the validity of the rule, as the General Counsel
proceeded only upon the theory of discriminatory enforcement of a valid
rule.
14 Farah Manufacturing Company, 187 NLRB 601; N.L.R.B. v. Harold
Miller, d/b/a Miller-Charles and Company, supra.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement of the rule heightens the ambiguity
inherent in the language of the rule rather than
eliminating it. Indeed the statement does add another
note of ambiguity stemming from the addition of the
word "any" in this statement entitled solicitation, for
employees must under this statement wonder wheth-
er the prohibition of literature distribution includes
the distribution of union authorization cards.
Our colleagues seem to be saying that the second
statement , together with the use of the term "work
time" in the rule against solicitation (rule 4) and the
use of the same term in the general statement under
SOLICITATION , demonstrates that the use of the terms
"working hours" in rule 5 was intended to mean the
same thing . One could say with as much logic, and
considerably more regard for protecting employees'
exercise of Section 7 rights, that the Employer's use
of the two terms to mean the same thing renders both
rules presumptively invalid, as the Hearing Officer in
effect finds . We would affirm her finding.
We would also affirm the Hearing Officer 's finding
that Objection 2 has merit for the reasons stated by
her in her Report on Objections.