General Industries Electronics Co.

National Labor Relations Board - Board Decisions

Oct 4, 1962

138 N.L.R.B. 1371 (N.L.R.B. 1962)

GENERAL INDUSTRIES ELECTRONICS COMPANY 1371
All our employees are free to become, remain, or refrain from becoming members
of the above-named Union, or any other labor organization, except to the extent
that his right may be affected by a lawful agreement requiring membership in a
labor organization as a condition of employment.
WINN-DIXIE STORES, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 112 East
Cass Street, Ross Building, Tampa, Florida, Telephone Number, 223-4623, if they
have any question concerning this notice or compliance with its provisions.
General Industries Electronics Company and International
Union of Electrical , Radio and Machine Workers , AFL-CIO.
Case No. 26-CA-1156. October 4, 1962
DECISION AND ORDER
On March 23, 1962, Trial Examiner John II. Dorsey issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent Company had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed timely exceptions to the Inter-
mediate Report and a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
pane] [Chairman McCulloch and Members Rodgers and Leedom].
The 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 Inter-
mediate Report, the except ions and brief, and the entire record in the
case, and finds merit in the exceptions of the General Counsel. Ac-
cordingly, the Board adopts the findings of the Trial Examiner only
to the extent that they are consistent with the following :
At all times material, Respondent Company had rules in effect at
its plant governing solicitations and distribution of literature.' These
rules do not specifically prohibit solicitation of union membership
or distribution of union literature. However, in view of their prohibi-
tion against "soliciting of any kind" and "distributing of literature of
any kind" and the fact that one employee received a written reprimand
for distributing union literature, we find that these rules encompass
within their broad scope the solicitation of union membership and dis-
1 The rules are set forth fully In the Intermediate Report
138 NLRB No. 139.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tribution of union literature. Further, the no-solicitation rule, by its
terms, does not limit its prohibition to working time, and the no-
distribution rule is not limited to working areas. The record shows
that the one employee who received a written reprimand for distribut-
ing union literature did so in a lunchroom (a nonworking area) dur-
ing a break period. Although Respondent's director of industrial
relations testified that the purpose of its rules is to maintain produc-
tion and discipline, we find nothing in this record to indicate special
circumstances which would warrant so broad a limitation against
union solicitation during nonworking time, or distribution of union
literature in nonworking areas. We find, therefore, that Respond-
ent's maintenance, enforcement, and application of the rules violated
Section 8 (a) (1) of the Act, to the extent that they prohibited union
solicitation on nonworking time, and distribution of union literature
on nonworking time in nonworking areas z
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action, which the Board finds is necessary
to effectuate the policies of the Act.
Upon the basis of the foregoing, and upon the entire record in the
case, we make the following :
CONCLUSIONS OF LAW
1. General Industries Electronics Company is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Union of Electrical, Radio and Machine Workers,
AFL-CIO, is a labor organization within the meaning of Section.2(5)
of the Act.
3. By maintaining, enforcing, or applying rules prohibiting em-
ployees during their nonworking time from soliciting membership
in any labor organization on company property and from distributing
literature on behalf of any labor organization in nonworking areas
the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act and thereby committed unfair labor practices within the meaning
of Section 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.
2Stoddaid-Qaii1, Manufacturing Co., 138 NLRB 615.
GENERAL INDUSTRIES ELECTRONICS COMPANY 1373
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, General Indus-
tries Electronics Company, Forrest City, Arkansas, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from maintaining, enforcing, or applying a
rule prohibiting employees from soliciting membership in any labor
organization during nonworking time or from distributing literature
on behalf of any labor organization during nonworking time in non-
working areas of Respondent's plant, or in any like or related manner
interfering with, restraining, or coercing employees in the exercise of
their right to self-organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in the Respondent's plant in Forrest City, Arkansas,
copies of the attached notice marked "Appendix." I Copies of said
notice, to be furnished by the Regional Director for the Twenty-sixth
Region, shall, after being duly signed by the Respondent's representa-
tives, be posted by the Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted at its Forrest City, Arkansas, plant. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
3 Ui the e%ent that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT maintain, enforce, or apply rules prohibiting our
employees during their nonworking time from soliciting member-
ship in any labor organization or from distributing literature on
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of any labor organization during nonworking time in lion-
working areas of the plant.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, or form labor organizations, to join or assist any
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
GENERAL INDUSTRIES ELECTRONICS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
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, 714 Falls Building, 22 North Front Street, Memphis, Tennessee,
Telephone Number, Jackson 7-5451, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed October 12, 1961, by International Union of Electrical, Radio
and Machine Workers, AFL-CIO, herein called the Union, complaint issued against
General Industries Electronics Company, herein called Respondent , alleging viola-
tions of Section 8(a) (1) of the National Labor Relations Act, as amended Re-
spondent filed an answer in which it admitted the jurisdictional allegations and denied
the alleged unlawful conduct. Hearing on the issues raised by the pleadings was held
at Forrest City, Arkansas, on January 29, 1962.1 At the close of the hearing General
Counsel made oral argument , the other parties waived . After the hearing Respond-
ent filed a brief.2
Upon consideration of the entire record , General Counsel 's oral argument, Re-
spondent 's brief, and upon my observation of the demeanor of the witnesses ,3 I make
the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is now, and has been at all times material herein, an Arkansas
corporation engaged in the manufacture of d c. fractional horsepower motors at its
Forrest City, Arkansas, plant
During the past 12 months, which period is representative of all times material
herein, the Respondent, at its Forrest City, Arkansas, plant, purchased and received
materials valued in excess of $50,000 directly from points outside the State of
Arkansas, and during the same period sold and shipped finished products valued in
excess of $50,000 directly to points outside the State of Arkansas.
Respondent admits and I find that at all times material herein it is an employer
engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
' All dates herein are in the year 1961 unless otherwise indicated.
2 Each of the parties was given the opportunity to file a brief
8 Unless otherwise indicated questions of credibility are resolved upon my observation
of the demeanor of the witnesses See, Salim, Demeanor Evidence ; Elusive and Intangible
Imponderables , 47 A B A. J. 580 ( June 1961).
GENERAL INDUSTRIES ELECTRONICS COMPANY 1375
II. LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. FINDINGS AND CONCLUSIONS RELATIVE TO THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a subsidiary of the General Industries Company which has its
principal place of business in Elyria, Ohio.
Respondent began operations in its Forrest City, Arkansas , plant in 1960.
A campaign to organize Respondent 's employees was initiated by the Union in
February 1961. The Union passed out literature and membership applications at
the plant 's entrances . Meetings of groups of employees were frequently held at
various places away from the plant. It is undisputed that Respondent had knowledge
of these activities.4
The complaint , as amended at the hearing, contains four allegations of conduct
in violation of Section 8(a) (1) of the Act .5 These allegations are set forth in sub-
stance in the captions below, and under each the material and,relevant evidence is
recited and the issues resolved.
B. Alleged surveillance of a union meeting on October 6
The night of October 6 a meeting of second-shift workers was held in the office
of Carl's Court, a motel in Forrest City. Ben Juley, an International representative
of the Union, presided. The meeting began at about 12:20 a.m., lasted about
one-half hour, and was attended by five employees.6
The meeting was originally set for another place which became unavailable.
Arrangements were made to hold the meeting in the public office of Carl's Court,
in which the registration desk is located, sometime after 11 p.m., immediately pre-
ceding the meeting.
The motel has a horseshoe-shaped driveway from the highway and the motel units
border on it. At the center of the curve of the driveway and contiguous to it the
office projects from the units, is glass enclosed in the front and on two sides, and is
open to view from the driveway. The office sets back about 300 feet from the
highway. The guests park their automobiles on the driveway.?
Ten minutes after the meeting began two of the female employees present looked
out the window and exclaimed, "There is Leroy, the second shift foreman." _ Two
of the General Counsel's witnesses -testified that Leroy Barth drove into the driveway
from the highway, drove slowly through the driveway, looked into the office, con-
tinued into the highway, and drove off. The foreman, Leroy Barth, testified that
he did not recall whether he had driven through the motel's driveway on October 6.8
He denied observing any union meeting at any time in the motel's office.
The evidence is undisputed that employees of Respondent's parent company stayed
at the motel when they visited Respondent's plant, that Foreman Barth, who had
been transferred from the parent company, often visited such employees at the motel,
and at least one employee from Elyria, ,Ohio, was registered at the motel the night
of October 6.
No probative value is attached to the testimony of General Counsel's witnesses
that Foreman Barth drove slowly around the driveway. To drive around it other-
wise would be foolhardy.
The mere presence of a supervisor at or near a union meeting does not satisfy
the requirements of burden of proof to establish surveillance. Opelika Textile Mills,
Inc., 81 NLRB 594. See also Remington Rand, Inc. (Louisiana Ordnance Plant),
103 NLRB 152 In the instant case the Union held its meeting in a "glass bowl."
It cannot be held that the mere presence of a supervisor at a public place from which
he might have observed the meeting is unlawful surveillance of union activities.
Cf. Remington Rand, Inc. (Louisiana Ordnance Plant), 103 NLRB 152; Salant &
4 At the hearing Respondent produced and introduced into evidence some of the Union's
literature and membership cards which had come into its possession
5 On motion by the General Counsel two other allegations, paragraphs numbered 7 and 8,
were stricken
9 The workday of the second shift ended at midnight
7 The hearing in this case was held in Carl's Court The Trial Examiner saw the physi-
cal setup.
e Barth testified he did not remember any time when he had driven over the driveway
without stopping and entering the motel.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salant, Incorporated, 92 NLRB 417; Franchester Corporation, 110 NLRB 1391;
Stokeley Foods, Inc., 91 NLRB 1267.
I find that the General Counsel has not proved this allegation of surveillance by
a preponderance of the testimony. I recommend dismissal.
C. Allegations that Respondent in violation of the Act promulgated and enforced
no-distribution and no-solicitation rules 9
Respondent's parent company promulgated a no-solicitation rule and a no-distribu-
tion rule at its Elyria, Ohio, plant in November 1958. At that time the parent
company was organized nand recognized four unions at its plant.
Before any person was employed at Respondent's plant, Respondent had printed
an "Employees' Handbook" which included the no-solicitation and no-distribution
rules which were in effect at Elyria.10 Each employee at Respondent's plant was
given a Dopy of the "Employees' Handbook" at the time he was hired. There is no
evidence that the rules were promulgated to discriminate against union activity.
There is no evidence that the rules were enforced at Respondent's plant in a dis-
criminatory manner. The uncontradicted evidence is that since the opening of
Respondent's plant only one written reprimand for violation of either rule was
issued-that for distributing the Union's literature on company property, a minor
offense under the rules. The recipient of the reprimand admitted to violating the
rule and that upon inquiry he was told by Respondent's plant superintendent that
it would not affect his chances for advancement. It is also undisputed that Re-
spondent never enforced the no-solicitation rule against solicitation of employees
for membership in the Union.
I find that the allegations of the complaint that Respondent promulgated and en-
forced the no-solicitation and no-distribution (rules in violation of the Act fails for
Sack of proof. I recommend dismissal of the allegations.
D. Allegation that Section Leader Clyde Blair requested an employee (Norma Jean
Busby) to procure union cards from an employee (Dora Shinn) for the purpose
of subjecting Shinn to discriplinary action under the no-distribution rule
Norma Jean Busby, an employee of Respondent, testified that Section Leader
Clyde Blair, about 5 months before the hearing, approached her at work and "asked
me if I would get a union card from Dora Shinn."" She replied, "I told him,
Y This caption includes two allegations of the complaint.
"The rules are as follows :
MAJOR OFFENSES
Disciplinary schedule:
1st violation-5 working days off.
2nd violation of same offense-discharge.
Combination of any 2 offenses-10 working days off.
Combination of any 3 offenses-discharge.
6. Soliciting of any kind, or collecting contributions for any purpose whatso-
ever on Company premises without the specific authorization of the Industrial
Relations Department.
MINOR OFFENSES
Disciplinary schedule:
1st violation-written reprimand
2nd violation of same offense-2 working days off.
3rd violation of same offense-5 working days off.
4th violation of same offense-discharge.
Combination of any 3 offenses-2 working days off.
Combination of any 4 offenses-5 working days off.
Combination of any 5 offenses-discharge.
* * s * s s
11. Distributing of literature of any kind on company property or posting or
removal of notices, signs or writing in any form on bulletin boards on Company
property at any time without specific authority of the Industrial Relations
Department.
Dora Shinn was one of the most active of the employees engaged in the Union's
campaign
REVERE COPPER AND BRASS , INC. 1377
no, I wasn 't going to get anybody in trouble ... I was for the union myself and he
said , `Well,' and walked off." Blair denied ever having such a conversation with
Busby . He testified that he had attended one union meeting and knew that Dora
Shinn "was soliciting union membership ." 12 From this testimony the General
Counsel orally argued that Blair requested Busby to get a union card from Shinn
so that she could be disciplined under the no-solicitation rule-a major offense for
which ,the penalty for a first violation is a layoff of 9 working days. In the absence
of supporting evidence this argument must be rejected . It is founded only on
speculativeness.
I find that the allegation fails for lack of proof . I recommend its dismissal.13
CONCLUSION OF LAw
Upon the basis of the foregoing findings, I find that Respondent has not violated
Section 8 ( a) (1) of the Act as alleged in the complaint.
RECOMMENDATION
Upon-the basis of the foregoing findings of fact and conclusions of law I recom-
mend that the complaint be dismissed in its entirety.
13 The General Counsel raised no issue concerning Blair's attendance at a meeting of
the Union. The inference , if any can be drawn , is that the Union solicited Blair's
membership
13 The General Counsel adduced some evidence of Respondent calling meetings of the
employees and stating in substance that it was only renting the plant and would not
tolerate any outside interference. This conduct Is not alleged in the complaint as a viola-
tion of Section 8(a) (1) of the Act. Of course , not withstanding the failure to plead, this
conduct, if proven would be material and relevant in determining whether Respondent
was motivated by union animus But, since the ultimate facts pleaded in the complaint
fail for lack of proof there is no need to determine motivation
Revere Copper and Brass , Inc. and Reuben H. Monkman and
Dewitt Lodge No. 852, International Association of Machin-
ists, Party in Interest. Case No. 13-CA-4613. October 4, 1962
DECISION AND ORDER
On June 26, 1962, Trial Examiner George J. Bott issued his Inter-
me 1iatpReport in the above-entitled proceeding, finding that the Re-
spondent 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 Intermediate Report. Thereafter,
the General Counsel and the Respondent filed exceptions to the Inter-
mediate Report and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
138 NLRB No. 140.