G & W Electric Specialty Co.

National Labor Relations Board - Board Decisions

Sep 13, 1965

154 N.L.R.B. 1136 (N.L.R.B. 1965)

1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to John Wells, Francis Greenhill, Bill Kelsey, Phillip Edwin
Chamblee, James Perkins, Edward Schade, Jr., Howard A. Patton, Ronald
O'Guin, Joe Parsley, Malcolm Mahan, George L. Oghvie, Houston G. Draper,
William C. Tubbs, and Kirk Dunnavant immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges and will make each whole for any loss
of earnings suffered as a result of the discrimination against them. If such
employment is not available, we will offer them transfer to such of our other
operations as might provide such employment. In the case of such unavaila-
bility at our Nashville, Tennessee, operation we will place the employees not
offered reinstatement on a preferential hiring list for future employment should
such become available. WE WILL pay to the above-named employees backpay
to cover their loss of earnings, with interest, until such time as we offer them
reinstatement, or such time as they find equivalent employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization, in a manner constituting inter-
ference, restraint, or coercion violative of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining, or other mutual aid
of protection, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by an agreement in conformity with Section 8(a)(3) of the Act.
We will not discriminate in regard to hire or tenure of employment, against any
employee because of membership in, or activity on behalf of, any labor organization.
MOORE-HANDLEY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Building, 167 North Main Street, Memphis, Tennessee, Telephone No. FR.
2-4361, Extension 512.
G & W Electric Specialty Company and William W. Helson.
Case No. 13-CA.--6031. September 13,1965
DECISION AND ORDER
On September 10, 1964, Trial Examiner Abraham H. Mailer issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
154 NLRB No. 91.
G & W ELECTRIC SPECIALTY COMPANY 1137
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the entire record in this case, including the Trial Exam-
iner's Decision, the exceptions, and the brief, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations, with the
following additions :
1. As no exceptions were filed to the Trial Examiner's finding that
the no-solicitation rule in effect prior to January 23, 1964, was violative
of Section 8 (a) (1) of the Act, we adopt this finding pro forma.
2. We find, in agreement with the Trial Examiner, that the Respond-
ent discharged William W. Helson because he spoke to employees dur-
ing the lunch period about the way the credit union was being operated
and solicited signatures for a petition connected therewith; that the
activity in which Helson was engaged was, in the circumstances of this
case, concerted activity for the mutual aid or protection of employees
within the meaning of Section 7 of the Act; and that the discharge
therefor violated Section 8(a) (1) of the Act. Although adopting in
all other respects the Trial Examiner's reasoning, we find it unneces-
sary to, and therefore do not, adopt the Trial Examiner's suggestion
that a credit union involves a term or condition of employment of a kind
subject to mandatory bargaining under the provisions of Sections 8 (d)
and 9 (a) of the Act.
Our decision herein is based on the facts of this case, and is not to be
construed, as our dissenting colleague suggests, as holding that any
employee activity which in any way involves other employees is pro-
tected by Section 7. However, we are convinced that the protection
afforded by Section 7 is not strictly confined to activities which are
immediately related to the employment relationship or working con-
ditions, but extends to the type of indirectly related activity involved
herein. We are satisfied in this respect that even under the ejusdem
generis maxim cited by our dissenting colleague, the benefits of credit
unions, which are made available to persons by reason of their employ-
ment status and indeed are advertised as among the advantages such
employment may afford, are close enough in kind and character, and
bear such a reasonable connection to matters affecting the interests of
employees qua employees, as to come within the general reach of the
"mutual aid and protection" the statute is concerned to protect. Addi-
tionally, although the mandatory subjects of collective bargaining
designated in Sections 8 (d) and 9 (a) relate only to working conditions
and the employment relationship, Section 7 provides that employees
shall have the right, inter alia, to engage in "concerted activities for
the purpose of collective bargaining or other mutual aid or protection."
200-446-66-vol. 154-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Emphasis supplied.] To construe this provision as protecting only
activities directly and immediately involving the employment relation-
ship would therefore be to read the phrase "or other mutual aid or pro-
tection" out of the Act.'
Quite clearly, the cases relied upon in the dissenting opinion do not
require such a result. Although the Supreme Court in Washington
Aluminum 2 found that the protected activity in that case was con-
cerned with a condition of employment, the Court did not indicate that
such a finding was essential to bring the activity within the protection
of Section 7. The issue here involved, whether employee activity is
protected by Section 7, was not reached in the Wisconsin Motor Cor-
poration case.3 The sole issue in that case was whether the action taken
by the union in imposing fines upon employees constituted restraint
and coercion within the meaning of Section 8(b) (1) (A). The Board
held that as a matter of internal union discipline protected by the pro-
viso of Section 8(b) (1) (A), the fines affected the employees only as
union members and not as employees, and, therefore, because of that
proviso rather than any limitation in Section 7, did not constitute the
kind of union restraint and coercion which Section 8(b) (1) (A) was
intended to proscribe. In other decisions,4 the Board has made it clear
that the mere fact that such fines do not affect employees in their
employment relations will not preclude a finding of unlawful restraint
and coercion in situations where the fines have been imposed because an
employee, contrary to a union rule, has exercised his right to file
charges with the Board.
3. In view of the Trial Examiner's failure to make conclusions of
law, the Board makes the following :
CONCLUSIONS OF LAW
1. G & W Electric Specialty Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Employer, by maintaining the shop no-solicitation
rule in effect prior to January 23, 1964, violated Section 8(a) (1) of
the Act.
'Accord, N .L.R.B. V. Peter Cailler Kohler Swiss Chocolates Company, Inc ., 130 F. 2d
503 (C .A. 2) ; Red Top Cab d Baggage Co., at at ., 145 NLRB 1433 , 1450. See also Beth-
lehem Shipbuilding Corporation , Ltd., et al. v . N.L.R.B., 114 F. 2d 930, 937 ( C.A. 1), in
which the court stated that " the right of employees to self-organization , and to engage
in concerted activities , now guaranteed by Section 7 of the National Labor Relations
Act, is not limited to direct collective bargaining with the employer , but extends to
other activities for 'mutual aid or protection,' including appearance of employee repre-
sentatives before legislative committees."
2 N.L R.B. v. Washington Aluminum Company , Inc, 370 U.S. 9
s Local 283 , United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW, AFL-CIO ( Wisconsin Motor Corporation), 145 NLRB 1097 (Member
Jenkins concurring , Member Leedom dissenting).
&Local 138 , International Union of Operating Engineers , AFL-CIO ( Charles S . Skure),
148 NLRB 679 , H. B. Roberts , Business Manager of Local 925 , etc. (Wellman -Lord Engi-
neering, Inc .), 148 NLRB 674 , enfd., 350 F . 2d 427 (C.A.D.C.).
G & W ELECTRIC SPECIALTY COMPANY 1139
3. Respondent Employer, by discharging William W. Helson
because he engaged in activities protected by Section 7, violated Sec-
tion 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
4. We agree with the Trial Examiner, in the circumstances of this
case, that it would effectuate the purposes of the Act to order the
Respondent to cease and desist promulgating or maintaining an unlaw-
ful no-solicitation rule even though the Respondent posted a new valid
rule after the issuance of the complaint herein. Accordingly, we shall
adopt the Trial Examiner's Recommended Order in full.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner as modified
herein, and orders that the Respondent, G R, W Electric Specialty
Company, Blue Island, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, as so modified : 5
1. Add the following as paragraph 2(b) and reletter the succeeding
paragraphs in sequence :
"(b) Notify William W. Helson if presently serving in the Armed
Forces of the United States of his right to full reinstatement, upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
MEMBER JENKINS, dissenting in part:
I cannot agree with my colleagues that a discharge of an employee
for circulating a petition involving a dispute over operation of a credit
union is "concerted activity for the mutual aid and protection of
employees within the meaning of Section 7 of the Act," and therefore
violative of Section 8(a) (1) of the Act.
In so concluding, the majority has disclaimed any reliance on the
Trial Examiner's conclusion that the activities of the credit union
relate to a condition of employment. They have, therefore, founded
their conclusion that a violation exists solely on the ground that if an
employee engages in any activity which in any way involves other
employees, and it can be construed to be for their mutual aid and pro-
tection, it falls within the protection of Section 7 of the Act.
b The telephone number for Region 13, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read : Telephone No. 828-7597.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such an interpretation is contrary to accepted canons of statutory
construction. It is also an unnecessarily broad interpretation of the
clause "for the mutual aid or protection of employees," which will, per-
force, require the majority to conclude that joint activities with respect
to an athletic team, community projects, or even business or political
ventures, are similarly protected under Section 7 as long as several
employees are involved, and irrespective of whether it involves the
employer-employee relationship.
Section 7 of the Act provides :
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other activi-
ties for the purpose of collective bargaining or other mutual aid
or protection ....
The words "mutual aid and protection" cannot properly be applied
literally and with the broad sweep the majority gives them; rather,
these words must, under the ejusdem generis rule, be construed to apply
only to matters of the same general kind or class as the preceding spe-
cifically mentioned matters; i.e., to matters within the employment
relation . The Declaration of Policy in Section 1(b), and the language
and plainly expressed purpose found throughout other sections demon-
strate that the Act is directed toward the employment relationship
between employers and their employees (including the latter's repre-
sentatives, of course). We have recently so held in Local 283, United
Automobile, Aircraft and Agricultural Implement Workers of
America, etc. (Wisconsin Motors Corporation), 145 NLRB 1097, in
concluding that a fine imposed by a union on its members for exceeding
production quotas established by the Union did not violate Section
8(b) (1) (A) of the Act because the fine was not imposed on him "as
an employee'' and "his employment status" was not "affected." The
Supreme Court viewed Section 7 similarly in holding a walkout in pro-
test of excessively cold working areas to be protected under that sec-
tion. N.L.R.B. v. Washington Aluminum Co., Inc., 3 7 0 U.S. 9. The
Court there expressly grounded its conclusion on the reasoning that the
walkout involved a "labor dispute" under Section 2(9) because it was
concerned with "conditions of employment"-reasoning which would
have been wholly supererogatory had the Court viewed "mutual aid or
protection" as broadly as does the majority here.
The majority's rationale is not fortified by any pertinent case prece-
dent. The two cases cited by the Trial Examiner, namely, N.L.R.B. v.
Phoenix Mutual Life Insurance Co., 167 F. 2d 983 (C.A. 7), cert.
denied 355 U.S. 845, and N.L.R.B. v. Peter Cailler Kohler Swiss Choco-
G & W ELECTRIC SPECIALTY COMPANY 1141
laces Company, Inc., 130 F. 2d 503 (C.A. 2), clearly involve the employ-
ment relationship or working conditions, and are, therefore, not prece-
dent for the majority's finding here.
For example, in N.L.R.B. v. Phoenix Mutual Life Insurance Com-
pany, supra, the court stated, at page 988:
Here Davis and Johnson and other salesmen were properly con-
cerned with the identy [sic] and capability of the new cashier.
Conceding they had no authority to appoint a new cashier .. .
they had a legitimate interest in acting concertedly in making
known their views to management .... The moderate conduct of
Davis and Johnson and the others bore a reasonable relation to
conditions of their employment. [Emphasis supplied.]
Similarly, in N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates
Company, Inc., supra, the court held that a resolution passed by the
union protesting the company's action in regard to a milk strike
rendered the discharge of the union's president an unfair labor prac-
tice. The court noted, at page 506:
"The P.C.I." [the employees' Union] might well believe that the
support engendered by that favor might prove as important in
future disputes with the chocolate company as the support of
other unions in its own craft or in other crafts.
It is clear, therefore, that in this case also, the resolution affected in
some part the employment relationship or working conditions of the
employees.
For the foregoing reasons, I would dismiss the complaint.
MEMBER BROWN took no part in the consideration of the above Deci-
sion and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 18, 1963, by William W. Helson, the Regional
Director for Region 13, of the National Labor Relations Board, herein called the
Board, on January 9, 1964, issued a complaint on behalf of the General Counsel of
the Board against G & W Electric Specialty Company, herein called the Respondent,
alleging that the Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act by: (a) maintaining rules
prohibiting employees from engaging in solicitations of any kind or the circulation of
petitions or literature of any nature on company property without the approval of
Respondent's general manager, and (b) by discharging William W. Helson on or about
November 13, 1963, because said employee engaged in concerted activities for the
purpose of mutual aid or protection, in violation of Section 8(a)(1) of the Act. In
its duly filed answer, the Respondent denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Mailer
at Chicago, Illinois, on February 26 and 27, 1964. All parties were represented and
were afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Briefs were received from the General
Counsel and from the Respondent.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses ,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent , a corporation organized under the laws of the State of Illinois, is
engaged in the manufacture , sale, and distribution of cable accessories and high voltage
switchgears and related products. At all times material herem, Respondent has main-
tained its principal office and place of business in the city of Blue Island, Illinois.
During the year preceding the issuance of the complaint, the Respondent in the
course and conduct of its business operations, manufactured, sold, and distributed
at said plant products valued in excess of $100,000, of which products valued in
excess of $50,000 were shipped from said plant directly to States of the United States
other than the State of Illinois. In view of the foregoing, I find and conclude that the
Respondent is engaging in commerce within the meaning of the Act and that it will
effectuate the policies of the Act for the Board to assert jurisdiction here.
II. THE ISSUES
1. Whether the Respondent's discharge of Helson constituted an unfair labor prac-
tice within the meaning of Section 8(a)(1) of the Act.
2. Whether the Respondent maintained in effect a rule which prohibits employees
from engaging in concerted activity for mutual aid and protection on Respondent's
property during the employees' nonworking time, in violation of 8(a) (1) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Helson
Helson had been employed by the Respondent from 1945 until November 13, 1963,
when he was discharged. During that time he rose to the position of checker in the
drafting department. His duties were to check the work of draftsmen for accuracy
and design. The record reveals that Helson was inclined to be argumentative both
with his superiors and with the draftsmen whose work he checked and had received
many reprimands for this as well as for tardiness and the unauthorized use of tele-
phones. On the other hand, his work was subject to annual merit reviews, and he
had received merit increases in the past 3 or 4 years.
In January 1963, Helson was elected to the board of directors of the G & W
Employees Credit Union, hereinafter referred to as the Credit Union. The Credit
Union was an organization of the employees of the Respondent and was created in
1957 under the laws of the State of Illinois. It owed its inception to a group of
employees who approached Peisonnel Manager Carr, discussed the matter with him,
and asked him to take the matter up with Respondent's management. Carr discussed
the matter informally with Respondent's president and told him that he thought an
employees' ciedit union was a good idea. Respondent's president stated that he
had no objection to the creation of a credit union as long as it did not interfere with
Carr's official duties and that he would expect Carr to take all steps to make sure
that the Respondent did not become involved if a credit union were formed. Carr
and Plant Manager Harrison served on the original board of directors of the Credit
Union. Membership in the Credit Union is limited to employees of the Respondent.
The Respondent dces not take any part in determining the policies of the Credit
Union. Respondent, however, permits the Credit Union to use its conference room
three times a week during the lunch period without charge. Also, at the request of
members of the Credit Union, the Respondent will make payroll deductions to the
Credit Union. From time to time, Respondent publishes a newspaper for its
employees. Items concerning the Credit Union have been printed in this paper.
'Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his
demeanor as I observed it at the time the testimony was given. Cf (National Food
Stores, Inc.), Retail Clerks International Association , AFL-CIO , Local 219 , 134 NLRB
1680, 1683, footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the
extent that I indicate that I do not rely on or reject in part or entirely the testimony
of any given witness, it is my Intent thereby to Indicate that such part or whole of the
testimony , as the case may be, is discredited by me. Cf. Jackson Maintenance Corpora-
tion, Inc., 126 NLRB 115, 117 , footnote 1, enfd. 283 F. 2d 569 ( C.A. 2).
G & W ELECTRIC SPECIALTY COMPANY 1143
Personnel Manager Carr testified that these items are furnished by the Credit Union
and are not edited by him except for grammar . In one issue under the heading
"Credit Union Questions" the following appeared:
Q. What moral interest does the Company have in the Credit Union?
A. The Company does not in any way act to influence the policies or opera-
tion of the Credit Union , but they are interested in the tact that the Credit
Union helps make its members free from financial worries and thereby better
employees . The company demonstrates its appreciation of this by furnishing
the Credit Union with office space , and permitting it to transact its business on
company premises . In addition the Company is extremely helpful in the
matter of payroll deductions.2
Upon his election to the board of directors of the Credit Union , Helson was named
a member of the supervisory committee . There, his activities made him extremely
unpopular with the board of directors He championed the complaint of one
employee who had borrowed money from the Credit Union and had been charged
interest for 1 month during which he did not have the use of the money . Helson's
function as a member of the supervisory committee was to audit the accounts of the
Credit Union monthly and sign a statement indicating that he had done so. He
testified that he was asked to sign such statements without having been shown the
records and that he refused to do so. Because of this he was criticized by the
president and treasurer of the Credit Union who told him that he was being too
particular and was too much of a perfectionist In August 1963 the board of
directors asked him to resign from the board . Helson refused , whereupon the board
of directors charged him with improper conduct in discussing the matter of the loan
referred to above, and by vote of the board suspended him from the board of
directors. A notice to that effect was placed on the company bulletin board. The
action of the board of directors was subject to the approval of the membership and
a meeting was scheduled to be held on September 9 for that purpose.
Helson then spoke to the Respondent 's president and requested that he be allowed
to place a notice on the bulletin board informing the members of the reason for his
suspension . Respondent 's president said that he did not want the company bulletin
board to become a debating place, but would permit him to place a notice on the
board after the membership meeting. He also requested that Helson resign from
the Credit Union. This Helson refused to do. He then prepared and distributed
to the employees a letter setting forth his side of the controversy with the rest of
the board and urging the members to attend the meeting of September 9 to vote
their opinion. At the September 9 meeting, the members of the Credit Union refused
to sustain the action of the board of directors and reinstated Helson to the board.
Helson admittedly used Respondent's equipment , stencil, and paper to prepare
his August letter to the membership of the Credit Union. According to his credited
testimony , he spoke to Warren Fink , Respondent 's chief draftsman and Helson's
superior , and told him that he intended to pay for the material when he came back
from his vacation and was assured that this was all right . Helson testified further
that he had received permission some 7 years ago to use company property for
private purposes upon payment therefore . Chief Draftsman Fink did not contradict
Helson's testimony as to the conversation with him. He testified further that other
employees had engaged in similar practices , paying the Respondent for the cost
of the materials used.
One of the persons to whom Helson gave a copy of this letter was N. O. Kirkby,
vice president and general manager of the Respondent , who was also a member of
the Credit Union. A few days later, Kirkby wrote Helson as follows-
On Friday , August 30 , you handed me a copy of an open statement concerning
your relations with the Credit Union.
On inquiring into the statement I have been advised that it was prepared and
reproduced on company material and time without prior permission . Further
it was distributed on the property of the Company without permission.
To insure that there is no misunderstanding by you or other employees, I will
repeat what should be known to all members of the Credit Union.
2 General Manager Kirkby testified to his assumption that the foregoing must have been
written by Personnel Manager Carr or someone in personnel He denied that it rep-
resented company policy Despite this denial , I find it difficult to believe that Personnel
Manager Carr , Respondent's official who was responsible for the publication of the paper,
would permit the insertion of an item which was contrary to Respondent 's policy.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G & W has no objection to the establishment or operation of the Credit
Union but G & W has no desire or intent to become involved in any part of
the operation of the Credit Union. As far as your action is concerned in pre-
paring, reproducing and distributing the statement on company equipment and
with company supplies and on company property all without permission or
agreement this will serve as notice to you that any similar action by you in
the future will be cause for immediate dismissal.
On November 11, 1963, the board of directors of the Credit Union met and
preferred certain charges against Helson and voted to expel him from membership
in the Credit Union. The claimed authority for their action was a recent revision of
the Illinois Credit Union Act. On the following day, Helson prepared the following
petition:
We the undersigned
As members of the G & W Employees Credit Union in good standing, hereby
request that a special mt'g be called some time during Dec 1963, to consider
the manner in which the Credit Union is operating , specifically in regards to
the quarterly audit & also, the manner in which the Board of Directors have
operated, in regards to individual members and to take such necessary action
as the members may feel required to correct the situation that now exist.
On November 13, between 12 noon and 12:30 p.m, the lunch hour of plant
employees ,3 Helson went into the shop where he obtained three signatures to the
petition. He then went to the superintendent's office where several of the foremen
were having lunch and solicited their support of the petition.4 He returned to his
work at 12.30 p.m.5 That afternoon, David Anthony, president of the Credit Union
and vice president of the United Steel Workers Local 3281 which represents the pro-
duction employees in the plant, approached Plant Superintendent Dean C. Harrison
and Personnel Manager Carr , separately , and told them that Helson had been talking
to the foremen trying to solicit their signatures to a document. Anthony said that
he had not seen the petition nor did he know what it was about, but as a result of
Helson's solicitation two of the foremen came to him and asked him what kind of
Credit Union they were running. They told him that Helson felt that the Credit
Union was being improperly run. Harrison thereupon spoke to two of the foremen,
James Pecora and Jim DeLuchia, and asked them what had happened in the office.
They said that Helson had told them that the Credit Union was being improperly
run; that he felt it was a matter of their concern and they ought to do something
about this. Harrison then went to Personnel Director Carr and asked him to get
in touch with Helson and tell him to stop these actions in the shop. He testified that
his motive was to keep the controversy from spreading into the shop. Carr then
went to the office of Plant Manager Kirkby and told him that Helson had gone into
the superintendent's office and "created a disturbance in arguing about the credit
union ." Following the chain of command downward, Plant Manager Kirkby told
Chief Engineer Nicholas that Carr had told him that Helson had gone into the
foreman's office at noon and "created a disturbance and had gone from the foreman's
office into the shop and created an additional disturbance ." 6 Kirkby then reminded
S The lunch hour for the supervisory employees was 12 noon to 1 p.m.
4 It is conceded by the Respondent that it was customary for the foremen to eat their
lunch in the superintendent 's office, and that Helson did not violate any rule by going
into the superintendent ' s office.
5 Respondent argues that Helson "possibly " circulated the petition on working time.
The contention is based upon an answer Helson made regarding the preparation and cir-
culation of the petition . It is not clear from the record whether Helson was referring
to the preparation or the circulation of the petition. But, in any event , it is not
significant , since Respondent 's action was admittedly based on Helson ' s activities during
the lunch period and no claim was then made that he had solicited during working time.
The "possibility" that he may have done so during working time was not discovered
until the hearing and did not enter into Respondent 's motive for the discharge.
6It is interesting to note that although neither Anthony nor the two foremen inter-
viewed by Superintendent Harrison had said anything about Helson's creating a dis-
turbance , the magnitude of Helson ' s alleged offense grew as the story was repeated.
Thus , Carr told Kirkby that Helson had created a disturbance in his discussion with
the foremen When Kirkby passed on the information to Nicholas he told him that
Helson had created a disturbance in the foremen 's office and then created an additional
disturbance in the shop.
G & W ELECTRIC SPECIALTY COMPANY 1145
Nicholas that Helson had been given a written warning on creating a disturbance
or creating disturbances in connection with the Credit Union and interfering with
work and suggested that he consider this particular act of Helson's in the light of
dismissing him. Helson was thereupon discharged.
Respondent contends that Helson was discharged for cause. It points to the
fact that he had been reprimanded on several occasions for tardiness, use of tele-
phones for personal matters, arguing with superiors about how drafting work should
be performed and accusing them of lying, unauthorized use of company material in
preparing his August letter to the members of the Credit Union, and going to the
president's office without authorization from his superiors. Respondent also points
out that Helson was warned that a repetition of any of these practices would result
in his discharge. Unquestionably, Respondent could have discharged Helson law-
fully for any of these acts. However, the fact is that he was not discharged for any
of these reasons, which, it is evident, "were not thought of sufficient importance to
warrant a discharge at the time they occurred" (N.L.R B. v. Greensboro Coca Cola
Bottling Company, 180 F. 2d 840, 841 (C.A. 4) ). Rather, it is undisputed, and I
find, that Respondent discharged him because he spoke to employees during the
lunch period about the way the Credit Union was being operated. While Respondent
has characterized this conduct as creating a disturbance, it is clear from the record,
and I find, that Helson's activity did not create a disturbance. There is no evidence
that the discussion was carried on in other than a normal tone of voice. Neither
the rank-and-file employees nor the foremen with whom Helson had discussed the
matter complained about his conduct. Indeed, when they were interrogated by
Plant Manager Harrison about the discussion, the foremen said nothing to him
about a disturbance. Nor did Anthony, president of the Credit Union, say anything
to Harrison about a disturbance when he complained of Helson's activity. Plainly,
Anthony was upset because Helson's solicitation was creating distrust in the manage-
ment of the Credit Union. As previously pointed out, the concept of a disturbance
was a figment of Personnel Manager Carr's imagination when he reported the matter
to Plant Manager Kirkby, and the latter magnified it when he directed Chief Engineer
Nicholas to take action against Helson, adding without any factual basis that Helson
had created a disturbance in the shop also. Admittedly, Helson's activity caused
some dissatisfaction with the operations of the Credit Union. But this does not justify
his discharge, if he was engaged in a concerted activity for the mutual aid or pro-
tection of the employees. As the Court of Appeals for the Ninth Circuit said in
Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325, 329:
It is obvious that concerted activities which are protected by the Act often
create a disturbance in the sense that they create dissatisfaction with the status
quo. Such a fact without more can hardly justify discharge.
The court observed that in the absence of a showing that the work of the other
employees suffered by reason of the concerted activities, the discharge was not
proper. Here, too, the record is completely devoid of any evidence that Helson's
solicitation affected the work in the plant in any manner.
The crucial questions, therefore, are.
(1) Was Helson engaged in a concerted activity?
(2) If so, was the activity for the mutual aid or protection of the employees?
As to the first, there can be little doubt. Helson was soliciting signatures to a
petition in which the signers were asking for a special meeting. All who signed the
petition were acting in concert with him "An activity may be concerted although
it involves only a speaker and a listener" (Salt River Valley Water Users' Association,
99 NLRB 849, 853, enfd. 206 F. 2d 325, 328 (C A. 9) ). Root-Carlin, Inc., 92
NLRB 1313, 1314.
Respondent contends that Helson was not engaged in a concerted activity because
he was seeking a personal benefit, viz, reinstatement in the Credit Union. In support
of its contention, Respondent relies upon Joanna Cotton Mills Co v. N.L.R.B, 176
F. 2d 749 (C.A. 4), where the court held that the circulation of a petition seeking
the discharge of a foreman was not for the mutual aid or protection of the employ-
ees. but was prompted by personal animosity of the dischargee toward the foreman.
Joanna Cotton Mills is clearly inapposite. Unlike the situation in that case, Helson
was not acting solely in his own behalf. While it is undoubtedly true that Helson
was interested in his reinstatement, it is clear from the petition which he circulated
that this was not the sole purpose-indeed not even the main purpose-of his activity.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The petition was for a special meeting "to consider the manner in which the Credit
Union is operating , specifically in regards to the quarterly audits, and also, the
manner in which the board of directors have operated , in regards to individual
members and to take such necessary action as the members may feel required to
correct the situation that now exist ." It will be recalled that one of Helson's diffi-
culties with the board of directors was the perfunctory approval of the quarterly
audits. The reference in the petition to the attitude of the board of directors toward
individual members embraced more than his expulsion from the Credit Union.
Helson had found merit in the complaint of a member who-rightly or wrongly-
felt that he had been charged interest for a period before he had received the loan.
And to the extent that the petition involved his expulsion from the Credit Union,
this was not completely a personal matter, as it was a direct result of his disagree-
ment with the board of directors regarding the operation of the Credit Union.
Moreover , his entire course of conduct as a member of the board of directors of the
Credit Union indicates that he was conscientiously concerned with the proper opera-
tion of the Credit Union , a matter which would redound to the benefit of all employ-
ees who were members of the Credit Union.
The second question-whether engaging in concerted activity for the betterment
of an employees ' credit union is "for the purpose of ... mutual aid or protection"
within the meaning of Section 7 of the Act-is one of first impression However,
concerted activities "do not lose their protection merely because they are novel"
(Boeing Airplane Company, Seattle Division , 110 NLRB 147, 149, enforcement
denied on other grounds 238 F. 2d 188 (C.A. 9).
Section 7 of the Act provides in part:
Employees shall have the right . . . to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection. ... .
The Act does not define the phrase "other mutual aid or protection ." However, the
scope of the phrase has been the subject of interpretation by the Board and the
courts. Thus, the Court of Appeals for the Seventh Circuit in N.L R B. v. Phoenix
Mutual Life Insurance Company , 167 F. 2d 983 , cert. denied 335 U.S. 845, pointed
out at page 988:
Section 7 of the Act provides that "employees shall have the right . . . to
engage in . . . concerted activities , for the purpose of collective bargaining or
other mutual aid or protection ." By incorporating this language , Congress must
have intended to include within the act what the usual meaning of these
unambiguous words conveys . A proper construction is that the employees
shall have the right to engage in concerted activities for their mutual aid or
protection even though no union activity be involved , or collective bargaining
be contemplated.
In that case , the company 's local manager had called a meeting of the salesmen
and announced the resignation of the cashier, telling them that a selection of a
successor was under consideration by the home office and that the new appointee
probably would be transferred from another branch office . The salesmen were con-
cerned about the impending change because of their dependence upon the cashier's
department for information and assistance affecting their earnings They met and
expressed their dissatisfaction with the fact that they had suffered inconvenience and
loss of time due to the breaking in of four different cashiers during the last few
years, and discussed the advisability of making a recommendation to the company
that the assistant cashier was well qualified to fill the vacancy and that they would
prefer her to an outsider . When the company heard of this, it discharged two of
the salesmen most active in this matter. Holding that the company was guilty of
violating Section 8(a) (1), the Court said at page 988:
Here Davis and Johnson and other salesmen were properly concerned with
the identy [sic] and capability of the new cashier. Conceding they had no
authority to appoint a new cashier or even recommend anyone for the appoint-
ment, they had a legitimate interest in acting concertedly in making known their
views to management without being discharged for that interest. The moderate
conduct of Davis and Johnson and the others bore a reasonable relation to
conditions of their employment.
G & W ELECTRIC SPECIALTY COMPANY 1147
The Court of Appeals for the Second Circuit has also construed Section 7 broadly.
In N.L.R.B. V. Peter Cailler Kohler Swiss Chocolate Co., Inc., 130 F. 2d 503, the
court held that a resolution of the union of employees protesting the company's
action in regard to a milk strike by a cooperative dairy farmers association was a
concerted activity for mutual aid or protection of employees within the protection
of the Act, so as to make the discharge of the union president for instigating the
passage and publication of the resolution an unfair labor practice. In an opinion
by Judge Learned Hand, the court said at page 505:
Certainly nothing elsewhere in the act limits the scope of the language to
"activities" designed to benefit other "employees"; and its rationale forbids
such a limitation.
The court reasoned that the passage of the resolution by the employees might
engender support for them at some future time when they might have a dispute with
their employer. The court said at page 506:
If, therefore, the members of "The P.C.K." [the employees union] thought
that the resolution might help to secure for them the favor of "The Union,"
[the cooperative dairy farmers association] it was no objection that "The Union"
was riot made up of "employees" as § 2 (3) defined that word; it was as little
an objection as though "The Union" had been made up of agricultural laborers
who were equally excluded from the act. "The P.C.K." might well believe that
the support engendered by that favor might prove as important in future disputes
with the chocolate company as the support of other unions in its own craft or
in other crafts 7
That an employees' credit union exists for their mutual aid cannot be questioned.
Indeed, it is the very purpose of its existence. This was clearly indicated by Per-
sonnel Manager Carr who testified that he suggested to Respondent's president that
it would be a good idea to have a credit union in the plant. He testified further.
I think it would a good thing for any group of people who-the bulk of them
are formed by individuals who work on an hourly wage; many of them do not
have checking accounts; as a result, when they are forced to borrow, they have to
go to a loan company which charges exorbitant rates, rather than to a bank
because they don't have a credit rating established.
Respondent argues, however, that in order to qualify as a protected activity the
activity must be one involving a union or must relate to a condition of employment.
As to the first contention-that the activity must involve a union-the contention
must be rejected. It is well settled that " `concerted activities for the purpose of
. .. mutual aid or protection' are not limited to union activities" (Salt River Valley,
etc. v. N.L.R.B., supra, at 322.) See also N.L.R B. v. Phoenix Mutual Life Ins. Co.,
supia, N.L.R.B. v. J. I..Case Company, Betterdorf Works, 198 F. 2d 919, 922 (C.A.
8): N.L R.B. v. Hyrnie Schwartz, d/b/a Lion Brand Manufacturing Company, 146
F. 2d 773, 774 (C.A. 5)
The General Counsel disputes Respondent's second contention, viz, that the con-
certed activity must relate to a condition of employment. He argues that "other
mutual aid or protection" is broader than that; that it is sufficient if it involves the
employees' livelihood or is a legitimate object of benefit to the employee. Pertinent
7 While the courts have construed "other mutual aid or protection" broadly, there are
nevertheless certain limitations. First, of course, it is essential that the activity be for
the mutual aid or protection of the employees, rather than for some other purpose. See
Joanna Cotton Mills Co. v. N.L.R.B., supra. Similarly, in N L R B v. Reynolds Inter-
national Pen Company, 162 F. 2d 680 (C A 7), it was held that the employees' walkout
to protest the demotion of a foreman was primarily in the interest of the foreman and
not of the employees Next, are those cases where the activity, though for mutual aid
or protection, involved illegal acts, or was in violation of a contract, or was a "wild cat"
strike, etc. See, e.g, NLRB. v. American Manufacturing Company of Texas, 203 F.
2d 212, 216-217 (CA. 5) ; N.L.R.B. v Indiana Desk Company, 149 F. 2d 987, 995
(C.A. 7) ; NLRB. v. Draper Corporation, 145 F 2d 199, 203 (CA 4). None of these
considerations is present in the instant case
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here is Red Top Cab & Baggage Co., etc., 145 NLRB 1433, wherein the company
argued that the activity was not protected because it was directed at "business condi-
tions," rather than "working conditions." Although the Board concluded that the
activity involved a working condition, it nevertheless rejected the contention:
The argument . . . overlooks the fact that the term "mutual aid or protection"
as used in Section 7 has a broader meaning in any event than "working condi-
tions." Section 7 guarantees "the right to self-organization (etc.), to bargain
collectively through (chosen) representatives; and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection."
However, the issue need not be resolved in this case, because assuming arguendo
that the concerted activity must relate to a condition of employment, it must be con-
cluded that Helson's activity was protected. Preliminarily, it should be noted that
although Congress used the phrase "condition of employment" in Section 8(d) and
9(a), it did not define it. However, as the Court of Appeals for the Seventh Circuit
in Inland Steel Company v. N.L.R.B., 170 F. 2d 247, cert. denied 336 U.S. 960,
pointed out at page 254:
We do not believe that it was contemplated that the language of Section 9(a)
was to remain static. Congress in the original as well as in the amended Act used
general language, evidently designed to meet the increasing problems arising from
the employer-employee relationship. As was said in Weems v. United States,
217 U.S. 349, 373, 30 S. Ct. 544, 551, 54 L. Ed. 793, 19 Ann. Cas. 705:
"Legislation, both statutory and constitutional, is enacted, it is true, from an
experience of evils, but its general language should not, therefore, be necessarily
confined to the form that evil had theretofore taken. Time works changes,
brings into existence new conditions and purposes. Therefore a principle to
be vital must be capable of wider application than the mischief which gave it
birth."
So, also, the Court of Appeals for the District of Columbia in Richfield Oil Cor-
poration v. N.L.R.B.., 231 F. 2d 717, cert. denied 351 U.S. 909, observed at pages
723-724:
The very fact that Congress has not defined "wages" or "terms" or "other con-
ditions of employment" makes it clear that the Board is to deal within its own
competence and expertise with the multiple variance of differing aspects of the
problems arising in these fields.
See also East Bay Union of Machinists, Local 1304, etc., v. N.L.R.B., 322 F. 2d 411,
414 (C.A.D.C.); N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 236 F.
2d 898, 903 (C.A. 6).
As the Board and the courts have recognized, the field of management-labor rela-
tions is a dynamic one, and if the Act is to serve its purpose it must be interpreted
to meet ever changing conditions. Such things as coffee breaks, water coolers, and
employee recreation rooms all subsumed under the description "fringe benefits" were
unheard of in the early stages of collective bargaining which was then largely cen-
tered around the basic "bread and butter" items of wages and hours. Once these
were taken care of, the subject matters of collective bargaining achieved a broader
spectrum. They reached out to such items as bonuses, pensions, employee stock pur-
chase plans, use of company bulletin boards, group insurance, and gas discounts,
which are now accepted as wages and/or conditions of employment and are subjects
of mandatory bargaining.8
o Bonuses : Singer Manufacturing Company v. N.L R.B., 119 F. 2d 131 (C.A. 7), cert.
denied 313 U.S. 595. Pensions: Inland Steel Company v. N.L.R.B., supra; Richfield
Oil Corporation v. NLRB-,--supra. Employee stock purchase plan: Richfield Oil Cor-
poration v. NLRB, supra. Bulletin boards : N.L.R.B. v. The Proof Company, 242 F. 2d
560, 562 (C.A. 7), cert. denied 355 U S 831. Group insurance: Clinton Foods, Inc., 112
NLRB 239; W W. Cross and Company Inc v. N L R.B., 174 F. 2d 875 (C.A. 1). Gas
discounts' Although fewer than one-half of the employees received the discount, since the
others did not use gas for space heating, the court held that "the employee gas discount
was an 'emolument of value' which accrue to 'employees out of their employment rela-
tionship.' " N.L.R.B. v. Central Illinois Public Service Company, 324 F. 2d 916, 919
(C.A. 7).
G & W ELECTRIC SPECIALTY COMPANY 1149
In recent years, employee credit unions have attained wide popularity and have
been instituted in numerous industrial concerns.9 That credit unions are bene-
ficial to the employees is self-evident and was recognized by the Respondent when
it permitted its employees to organize one. The Board has also recognized that an
employee's credit union is a benefit arising out of the employee relationship, holding
that the threat of an employer to abolish it if the union won an election was violative
of Section 8(a) (1). Texas Industries, Inc., etc., 139 NLRB 365, 368.10
But the benefits are not limited to the employees. The employer also gains by
having employees whose morale is strengthened by the knowledge that they have a
ready source of borrowing at reasonable interest rates in a financial emergency. More
than this, when faced with the tight labor market, the employer can use the avail-
ability of an employees' credit union as an added inducement to the prospective
employees to work for him. While the benefit of a credit union is obviously not as
great as a retirement and pension plan, the logic applied by the Court of Appeals for
the Seventh Circuit in the Inland Steel Company case, supra, is relevant here. The
court said (170 F. 2d at 253) :
Suppose that a person seeking employment was offered a job by each of two com-
panies equal in all respects except that one had a retirement and pension plan and
that the other did not. We think it reasonable to assume an acceptance of the job
@ The growth of credit unions is demonstrated by the following statistics issued by the
U.S. Department of Health , Education , and Welfare , Social Security Division, Bureau of
Federal Credit Unions, of which I have taken official notice in accordance with the pro-
visions of Section 7 of the Administrative Procedure Act.
FEDERAL CREDIT UNIONS`
Number of Number of Loans out.
Year operating members Assets standing
credit unions
1935------------------------------ 772 119,420 $2,372,100 $1,834,200
1947-------------------- 3,845 1,445,915 210,375,571 91,372,197
1963______________________________ 10,955 7,499,747 3, 916, 541,104 2,911,159,474
STATE-CHARTERED CREDIT UNIONS**
1935------------------------------ 2, 600 523,132 47,964,068 Not published
1947------------------------------ 5,155 1,893,944 380, 751, 106 Not published
1963 ------------------------------ 10, 425 7,083,045 4,211,483,457 3, 259, 381,000
The foregoing includes all credit unions ; i.e ., those operated by associations, occupa-
tional groups , and residential groups . The following indicates the relationship between
the number and activity of credit unions operated by occupational groups to the total
number and activity of Federal Credit Unions for the year ended December 31, 1963*
(comparable statistics for State-chartered credit unions not readily available) :
Number Number of
Loans made during 1963
members
Number Amount
Total____________________________ 10,955 7,499,747 5,334,318 $4,017,102,279
Occupational----___ _____ 9,080 6,661,728 5,018,069 3.744, 161, 835
*Source 1963 Report of Operations, Federal Credit Unions, Issued by the Bureau of
Federal Credit Unions.
**Source: Advance Release • State-chartered Credit Union Operations in 196 issued
by Division of Statistical Research & Analysis, Bureau of Federal Credit Unions, issued
July 31, 1964.
11 The Board found that the threat had not been proved
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the company which had such plan. Of course, that might be described
merely as the inducement which caused the job to be accepted, but on acceptance
it would become , so we think , one of the "conditions of employment."
Membership in the Credit Union qualifies as a condition of employment because
it is an emolument of the employment relationship . It arises out of the employment
relationship in that employment by Respondent is a sine qua non to membership in
the Credit Union. Moreover , despite Respondent 's protestations of its lack of interest
in the Credit Union and of its desire not to become involved in its opertaions, the fact
remains that Respondent 's conduct has made the Credit Union a condition of employ-
ment . Respondent has encouraged and assisted the Credit Union by: ( 1) giving the
employees its permission to organize the Credit Union and to use the company name;
(2) permitting the Credit Union to use its conference room to transact its business;
(3) making payroll deductions for the Credit Union; and (4) publishing in its plant
newspaper items submitted by the Credit Union promoting membership in the Credit
Union.11
Finally, Respondent argues that Helson was not engaged in a protected activity
because the petition he was circulating was not directed to the Respondent . This con-
tention, too, does not hold up. It is well settled that protected activity need not be
directed against the employer. Thus, in Fort Wayne Corrugated Paper Company v.
N.L.R.B., 111 F. 2d 869 (C.A. 7), the company had threatened an employee with
layoff under the following circumstances : The employee , a district officer of a union,
represented employees of another company in their collective -bargaining efforts with
their employer. The latter was a customer of the former company and withdrew its
business because of the employee 's activities . In upholding the Board 's findings that
the company had thereby committed an unfair labor practice , the court observed that
the Act "will not be construed to have so narrow a scope as to protect union activities
only in the interrelation between the employees and employer of one company (Id. at
874). Similarly , the appearance of employee representatives before a legislative
committee considering a bill to increase benefits under the Workmen 's Compensation
Act was considered to be an activity for mutual aid or protection. Bethlehem Ship-
building Corporation, Ltd. v. N.LR.B., 114 F. 2d 930, 937 (C.A. 1). See also
Walls Manufacturing Company, Inc., 137 NLRB 1317, 1318-1319, and Red Top
Cab & Baggage Co., supra, in which the Board held that a petition to a State regula-
tory agency was a protected activity.12 Relevant, also, in this context is the line of
cases in which concerted activities regulating to intraunion affairs have been held to be
protected. See e.g. Top Notch Manufacturing Company, Inc., 145 NLRB 429;
Brewers and Maltsters Local Union No. 6, Teamsters (Falstaff Brewing Corporation),
128 NLRB 294, 305, enfd. as modified 301 F. 2d 216 (C.A. 8).
In view of all the foregoing, I find and conclude that Hclson's activity regarding
the Credit Union constituted activity for "mutual aid or protection" within the meaning
of Section 7 of the Act and, as such, was protected. His discharge for engaging in that
activity was therefore a violation of Section 8 (a)( I) of the Act. Respondent is not
absolved because it may not have believed that Helson was engaged in a protective
activity. "The right of employee to engage in activity guaranteed by Section 7 of the
Act should not be subject to defeasance merely because the employer believes he is
not violating the Act in restraining the employee in his exercise of such rights"
(N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F. 2d 941, 945-946 (C.A. 1) ).
B. The no-solicitation rule
For several years prior to the hearing , the Respondent had maintained a set of
rules which it published in a pamphlet entitled "Plant Rules and Recommended Prac-
tices." One of said rules entitled "Petitions" read as follows:
Solicitations of any kind , the sale of tickets, circulating of petitions or literature
of any nature , or taking of collections by employees is not permitted on company
property without the approval of the Plant Manager.
The rules set forth in the foresaid pamphlet were applicable only to shop employees.
Office and supervisory employees were governed by the rules set forth in another
pamphlet entitled "G & W Philosophy-General Company Policies and Operating
"The last action, standing by itself , would not be persuasive . Coupled with the
others, it gives added weight to the conclusion that the Respondent by its conduct has
constituted the Credit Union as a condition of employment.
1 In Red Top , the petition requested relief not only on behalf of employees but for
nonemployees as well.
G & W ELECTRIC SPECIALTY COMPANY 1151
Practices ." On January 23, 1964, after the issuance and service of the complaint herein
the Respondent posted the following notice on its bulletin board:
NOTICE TO EMPLOYEES
January 23, 1964
The Company has learned that a strict interpretation of one of our plant rules set
forth in the pamphlet entitled "Plant Rules" under the heading "Petitions" could
be considered in violation of the law. While the Company has never used this
rule as being applicable to either the shop employees or the office employees dur-
ing nonworking time, the aforesaid rule is hereby modified to read as follows:
PETITIONS
Except for non-working hours such as the lunch period, solicitations of any kind,
the sale of tickets, circulating of petitions or literature of any nature, or taking
of collections by employees is prohibited on the premises of the Company."
The former rule prohibiting solicitation was not involved in the discharge of Hel-
son. Helson was not charged with violating the rule which, in any event, was inappli-
cable to him as an office employee.
Since the prohibition in the original rule was not limited to working time, it was
presumptively invalid. Walton Manufacturing Company, 126 NLRB 697. Respond-
ent does not dispute this. It concedes "that the mere maintenance of the original rule
may have been a violation of the Act," 13 but contends that the violation was remedied
when it rescinded the rule and published the new one after receiving the complaint.
The General Counsel argues that, as the old rule violated Section 8(a)(1), remedial
action is proper and necessary. The matter will be discussed in the section entitled
"The Remedy."
As to the validity of the new rule, the General Counsel offers no serious objection.
He raises the question, however, whether the language "non-working hours such as the
lunch hour" is sufficiently definite and clear to inform employees that they may
engage in self-organizational activities on Respondent's premises at any time other
than their working time. He points out that if the rule contains any ambiguity, that
ambiguity "must be construed in favor of the rights guaranteed employees under the
Act" (Shawnee Industries, Inc., 140 NLRB 1451, 1471, footnote 40).
I am satisfied that the new rule is sufficiently clear as to inform the employees of
their rights in this regard. The words "such as the lunch period" following "non-
working hours" is merely illustrative and does not limit nonworking hours to the lunch
period. I find it difficult to believe that employees would be misled as to their rights
by the rule as so formulated. Accordingly, I find and conclude that the new rule is
valid.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with the business operations of the Respondent set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.14
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action designed to effectuate the policies
of the Act.
18 Respondent 's brief, p. 23.
14 Respondent argues that the discharge of Helson is not itself a burden or obstruction
on commerce and has not led or tended to lead to a labor dispute. This contention has
long ago been laid to rest. In N.L.R.B. v. Phoenix Mutual Life Insurance Company,
supra, the Court of Appeals for the Seventh Circuit said (170 F. 2d at 985) :
The contention made that the particular acts of respondent, upon which the Board
based its findings of unfair labor practice, have not been shown to have been a burden
upon commerce is without merit. The Board need not prove an actual stoppage in
the flow of commerce or even the immediate likelihood of such stoppage before it
assumes jurisdiction over the employer.
See also N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U S. 224, where the Supreme
Court reversed a Decision by the Court of Appeals for the Second Circuit which had
remanded the case to the Board so that it might "take further evidence and make fur-
ther findings on the manner in which a labor dispute at Reliance affects or tends to affect
commerce" (Id. at 225).
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since I have found that the Respondent discharged William W. Helson for engag-
ing in concerted activity, I shall recommend that the Respondent be required to offer
him immediate and full reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered because of the Respondent's action
against him, with backpay computed in the customary manner.15 I shall further rec-
ommend that the Board older the Respondent to preserve and make available to the
Board or its agents, on request, payroll and other records to facilitate the computation
of the backpay due and the right of employment.
Having found that the Respondent violated Section 8(a)(1) of the Act by main-
taining an invalid no-solicitation rule, I shall recommend that it cease and desist
therefrom, notwithstanding the fact that Respondent has already rescinded the rule.
It is well settled that "the fact that the coercive conduct has ceased does not prevent the
Board from barring its resumption" (V. S. Anderson and M. C. Anderson, copartners
d/b/a Pacific Moulded Products Company, 76 NLRB 1140, 1142, footnote 6).
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respondent, G & W Electric Specialty Com-
pany. its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging or otherwise discriminating against employees in regard to hire
and tenure of employment or any term or condition of employment for engaging in
concerted activities for the purpose of mutual aid or protection.
(b) Promulgating or maintaining in effect any rule which prohibits solicitation of
union membership on company property during nonworking time or which prohibits
the distribution of handbills or other literature or petitions on behalf of any labor
organization in nonworking areas during nonworking time.
(c) In any like or related manner restraining or coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to William H. Helson immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss he may have suffered by reason of the
Respondent's discrimination against him in the manner set forth in the section of the
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due.
(c) Post at its plant in Blue Island, Illinois, copies of the attached notice marked
"Appendix." 16 Copies of such notice, to be furnished by the Regional Director for
Region 13, shall after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Decision, what steps the Respondent has taken to comply herewith.17
15F. W. Woolworth Company, 90 NLRB 289; 18i8 Plumbing t Heating Co., 138
NLRB 716.
is If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order".
17 If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for Region 13, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
SAN JUAN LUMBER COMPANY 1153
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage or otherwise discriminate against our employees for
engaging in concerted activities for the purpose of mutual aid or protection.
WE WILL NOT maintain in effect any rule which prohibits solicitation of union
membership on company property during nonworking time or which prohibits
our employees, when they are are on nonworking time, from distributing hand-
bills or other literature or petitions on behalf of any labor organization in non-
working areas of our property.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL offer to William W. Helson immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights or privileges previously enjoyed, and will make him whole for any
loss he may have suffered by reason of our discrimination against him.
G & W ELECTRIC SPECIALTY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 881,
U. S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois, Telephone No. 828-7572, if they have any question concerning this notice
or compliance with its provisions.
San Juan Lumber Company and Lumber and Sawmill Workers,
Local Union No . 2924, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case No. 36-CA-1336. Sep-
tember 13,1965
DECISION AND ORDER
On February 24, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs. The Charg-
ing Union filed a brief in support of the Trial Examiner's Decision.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the exceptions, the briefs,
154 NLRB No. 87.
206-446-66-vol. 154-74