General Industries Electronics Co.

National Labor Relations Board - Board Decisions

Feb 20, 1967

163 N.L.R.B. 38 (N.L.R.B. 1967)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Industries Electronics Company and
International Union of Electrical, Radio
and Machine Workers, AFL-CIO. Cases
26-CA-2271 and 26-RC-2545.
February 20,1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On August 31, 1966, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended dismissal of these allegations. He
further found that one of the Union's objections to
the election in Case 26-RC-2545 should be
sustained and recommended that the election be set
aside, and also recommended that other of the
Union's objections to the election be overruled.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in
connection with these cases to a three-member
panel.
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
Decision, the exceptions and brief, and the entire
record in these cases, and hereby adopts the Trial
Examiner's findings, conclusions, and
recommendations. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board hereby adopts
as its Order the Recommended Order of the Trial
Examiner and orders that Respondent, General
Industries Electronics Company, Forrest City,
Arkansas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
i In the absence of exceptions thereto, we adopt pro forma the
Trial Examiner' s conclusion that the no-handbilling sign was
unlawful but that its existence did not aft the result of the election
and his recommendation that the Union's objection based on the
presence of this sign be overruled
IT IS FURTHER ORDERED that the election held on
January 12, 1966, among the employees of General
Industries Electronics Company, at its Forrest City,
Arkansas, plant, in the appropriate unit, be, and it
hereby is, set aside.
[Text of Direction of Second Election omitted
from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: On a charge and
amended charge filed in case 26-CA-2271 by
International Union and Electrical Radio and Machine
Workers, AFL-CIO, (the IUE and the Union) and served
on General Industries Electronics Company (Respondent
and at times the Employer) on December 6, 1965, and
January 17, 1966, respectively, the General Counsel of the
National Labor Relations Board (the Board), through the
Acting Regional Director of the Board's Region 26, on
January 18, 1966, issued a complaint and notice of hearing
alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (the Act).
On January 12, 1966, pursuant to a Decision and
Direction of Election issued in Case 26-RC-2545 on
December 14, 1965, by the Regional Director of Region 26,
the Board conducted an election among employees of
Respondent in a "production and maintenance" unit, in
which the employees voted against representation for
purposes of collective bargaining by either the IUE or the
International Brotherhood of Electrical Workers,
AFL-CIO (the IBEW).i The IUE filed objections,
specifying eight items. On February 25, 1966, the Regional
Director issued a Supplemental Decision, Order and
Direction of Second Election in which he overruled
objections 1, 2, 5, 7, and 8, found merit in objections 3 and
4, noted that objection 6 was based on the same facts as
the allegations of the original complaint in Case
26-CA-2271, and directed that the election be set aside on
the basis of his findings sustaining objections 3 and 4 and
that a new election be held. On the Respondent's petition
for review, the Board, on April 1, 1966, issued an order
directing a hearing on objections 3, 4, and 6 and
authorizing that it might be consolidated with the hearing
on the complaint in Case 26-CA-2271 and held before a
Trial Examiner designated by the Chief Trial Examiner.
Pursuant to an order consolidating cases, amendment to
complaint,2 and notice of hearing issued April 11, 1966, by
the Acting Regional Director of Region 26, the hearing was
held on May 16 and 17, 1966, before George Turitz, the
Trial Examiner designated by the Chief Trial Examiner.
i The petition in Case 26-RC-2545 was filed by the IUE on
November 17, 1965, and a hearing thereon was held on
November 29, 1965 The tally of ballots issued at the conclusion of
the election on January 12, 1966, showed , inter alia , the following
Approximate number of eligible voters 455
Votes cast for the IUE 160
Votes cast for the IBEW 17
Votes cast against both 244
Challenged ballots 0
Void ballots 1
2 The amendment alleged as unfair labor practices, inter
alia, the matter alleged in objections 3 and 4.
163 NLRB No. 12
GENERAL INDUSTRIES ELECTRONICS CO.
The General Counsel and Respondent were represented at
the hearing by counsel and the IUE by an International
representative. At the conclusion of the hearing, counsel
for the General Counsel argued orally, and subsequent to
the hearing Respondent and the IUE filed briefs with the
Trial Examiner.
The issues litigated at the hearing were, briefly stated,
Respondent's prohibition of the distribution of handbills,
including union literature, on its parking lot without its
prior permission; Respondent's refusal, notwithstanding
said prohibition, to allow the IUE "equal opportunity" to
reply to Respondent's preelection speeches made to
employees in the plant during their working hours; a threat
of reprisal by a supervisor if the IUE won the election; and
the entry on four employees' records of notations
indicating that they had been absent from work in violation
of the Employer's regulations when they accompanied the
Union's representative to the representation hearing in
Case 26-RC-2545. Except for the issue of the supervisor's
threat, all issues were litigated both as objections to the
election and as unfair labor practices.3
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, General Industries Electronics Company,
is an Arkansas corporation having a plant and place of
business at Forrest City, Arkansas, where it is engaged in
the manufacture of fractional-horsepower motors.4 In the
course and conduct of its business operations at the
Forrest City plant Respondent annually purchases and
causes to be transported from points located outside
Arkansas directly to its said plant goods and materials
valued at in excess of $50,000, and annually sells and ships
products valued in excess of $50,000 directly from said
plant to customers located outside the State of Arkansas.
Respondent admits, and it is found, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the National Labor Relations Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS
A. Background
Operations at Respondent 's Forrest City plant started in
August 1960 under the managership of George Dahl, who
was still manager at the time of the hearing . In the course
of its existence several representation elections have been
held, one in 1961 with the IUE on the ballot, one on
September 27. 1963, and in May 1964, with the IBEW on
The Regional Director found that the supervisor 's alleged
threat to a single employee was too isolated to be a ground for
invalidating the election No exception was taken to this finding.
" The Employees' Handbook of Respondent refers to the
Employer as General Industries Company, and in Case
26-CA-1156, 138 NLRB 1371, it was found that Respondent is a
subsidiary of General Industries Company, which has its principal
place of business in Elyria, Ohio The Handbook also states that
39
the ballot,5 and one on January 12, 1966, with both the IUE
and the IBEW on the ballot.
In 1962, on a charge filed by the IUE, the Board issued a
Decision and Order in Case 26-CA-11566 finding that
Respondent had engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by maintaining in
effect at the Forrest City plant rules prohibiting "soliciting
of any kind ... on company premises without the specific
authorization of the Industrial Relations Department," and
prohibiting "Distributing of literature of any kind on
company property ... at any time without specific
authority of the Industrial Relations Department." The
Board ordered Respondent to
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 nonworking 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 representatives of their own choosing, or 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.
The Board also required Res ondent to post a notice
informing the employees that it would not so act.
Respondent modified the rubs in question and on
November 13, 1962, was informed by the Regional
Director that the revised rules appeared acceptable and
accordingly constituted compliance with the Board's
Decision and Order in Case 26-CA-1156. Respondent
notified the employees of the revised rules by posting
them.
In about August 1965 the IUE started an organizational
campaign at the Forrest City plant, under the direction of
Ray Hobbs, an International representative. Hobbs was
assisted by a number of male employees of a nearby plant
which was under contract with the IUE and by a number of
women employees in Respondent's Forrest City plant.
Substantially all the employees came to work by
automobile and Hobbs and the men distributed leaflets to
the employees as the cars approached the entrance of
Respondent's parking lot. In the course of the campaign
the IUE distributed about 30 propaganda leaflets in this
manner.7 Distribution by mail was not feasible since
Hobbs had the addresses only of employees who had
already signed cards. Visits to these employees' home
were not practicable to any great extent since a large
portion of them lived outside Forrest City and in many
cases they had "general delivery" or rural mail routes as
addresses.
• Some of the women employees assisted Hobbs within
the plant by distributing IUE buttons and a miniature
leaflet about 4 inches long and 3 inches wide but folded in
two, called "gremlins," and by soliciting designation
cards. From time to time they left a few of the regular
in 1964 General Industries Company became a wholly owned
subsidiary of Walco American Corporation
The May 1964 election was a rerun of the September 1963
election, which had been set aside because of Respondent's
interference See General Industries Electronics Company, 146
NLRB 1139
' General Industries Electronics Company, 138 NLRB 1371
'On one occasion, on January 11, 1966, a leaflet was
distributed at the exit as the employees left for home.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaflets on lunchroom tables, but there was no effort by the
IUE to distribute substantial numbers of leaflets within the
plant." The IBEW, which in previous campaigns had
brought stacks of leaflets into the plant to distribute or
leave on the tables in the lunchroom and in the restrooms,
did not do so in the 1965-66 campaign, and, in fact, did not
make much of an effort to win the employees over.
B. The No-Handbilling Signs
On one occasion during the campaign the IUE
committee discussed with Hobbs the problem of their not
being able to reach all the employees with the campaign
literature since one out of every three or four drivers
refused to stop to receive it or to permit other employees in
their car pools to receive it.9 This difficulty was aggravated
on rainy days when many employees, because of the rain,
did not wish to lower their windows to receive literature.
Hobbs stated at the hearing, "As a rule we don't distribute
literature on a parking lot," but that "very often we will
ask employees to stand at the door." When parking lot
distribution was suggested by one of the employees,
Hobbs called attention to signs at the entrance and exit of
the lot reading, "No distribution of handbills without prior
approval." The girls were ready to distribute the leaflets
on the lot but did not wish to request permission from
management and the matter was dropped.
The sign in question at the entrance was about 12 by 15
inches.10 Respondent had other signs in the lot, namely, a
parking area sign , a speed limit sign , a receiving sign, and
a shipping sign . The no-handbilling sign was erected in the
fall of 1960, not long after the opening of the plant. There is
no evidence that the sign was brought to the attention of
the Regional Director or of any Board agent or was in any
way considered in connection with Case 26-CA-1156
described above," and, as stated above, Respondent was
advised that the steps it had taken with respect to its rules
and regulations appeared acceptable and constituted
compliance with the Board's Decision and Order. The
signs remained in the parking lot.
In its answer to the amended complaint,12 Respondent
denied that the no-handbilling signs applied to the
employees. At the hearing, however, Respondent's
counsel stated unequivocally that the prohibition did apply
to the distribution of union literature by employees and
that an employee distributing such literature without prior
permission would have been "in violation." No such
permission was ever requested on behalf of the IUE or any
other labor organization , and no union literature was ever
distributed on the parking lot.
Hays, Respondent's personnel supervisor, and Dahl
testified that the no-handbilling sign was erected primarily
to control distribution of throw-aways by store owners with
the object of preventing pilferage and littering. Their
apparent explanation was that by requiring distributors to
report at the office in advance, first, they would
immediately know the prime suspect in case articles were
missed, and, second, they could caution the distributors as
to the manner of distribution so as to avoid litter. Hays
testified that the distributors were instructed to place the
circulars in car door handles and under the windshield
wipers, and to place them inside the car only when the
windows were down. Dahl testified that the distributors
were requested to help Respondent "by not just hanging it
on doorknobs and putting it under windshield wipers
." Dahl also testified:
. also, we have an unprotected lot in the back.
People leave things in their cars; like cameras. I
would imagine things that they buy downtown,
maybe, and things of this nature. We have never had
anything stolen that I know of, but it is always a
possibility. We did have a car misplaced out there one
day, but it turned up.
Hays testified that there were fewer thefts in the past year
than previously and he doubted that there were as many as
three or four. The parking lot was unfenced and
unguarded.
C. The McClure Incident
Virginia Clark, one of Hobbs' principal assistants in the
IUE campaign13 testified that on the day of the election'"
she had a conversation with Charles McClure,
Respondent' s maintenance foreman and an admitted
supervisor. McClure had the responsibility of maintaining
the restrooms and regularly closed them six times a day for
purposes of refilling the various dispensers and for
cleaning. Mrs. Clark testified that she had known McClure
on a friendly basis since her employment by Respondent,
which dated back 4 years, and that he frequently came
over to her machine and asked her how she thought the
election was coming out or "how we were standing." On
the occasion now in question he said, according to Mrs.
Clark:
. that if the Union came in ... that we would not be
able to leave our work areas and go to the bathroom
anymore. I asked why, and he said because he would
shut the bathroom down ....
The witness testified that she was somewhat upset by the
conversation and therefore went to the restroom, where
she told some girls what McClure had said. About 10
minutes later, having returned to her machine, she was
asked by McClure why she had told the girls that he would
shut the restrooms down if the Union came in. He denied
Larry Sinquefield, a supervisor, whose work area was so
situated that he could observe what went on in the lunchroom
where the employees took their rest periods, testified that he saw
IUE adherents bring the literature in and place it on the
lunchroom tables However, he said, "They didn ' t bung in large
amounts" , and he was apparently referring primarily to the
miniature leaflets which the girls themselves had testified they
had distributed in the plant Stevens, another supervisor , testified
only that he observed women reading leaflets when idle on the
work lines Iva Lawson, an IBEW supporter, testified that shortly
before the election she saw Virginia Clark , the principal IUE
supporter , standing near the timeclock and handing out what from
the distance looked like leaflets
" While cars left the lot slowly at the end of the day because of
traffic congestion , the situation was otherwise in the morning
when they arrived In fact the plant safety committee even
stationed a man at the entrance during the time employees
arrived to identify drivers-apparently all nonemployees-who
drove in recklessly
10 The sign at the exit was substantially similar but was not
fully described
" Respondent had a separate parking area for office personnel
which a visiting Board agent would presumably use rather than
the general parking lot
Answer, ¶three
3 Her husband, George Clark, was an important figure in the
IUE in a neighboring plant which was under contract with the
IUE, and several weeks before the hearing had become a paid
employee of the IUE . He was Hobbs' chief aide in the campaign at
Respondent 's plant
" She did not state the time
GENERAL INDUSTRIES ELECTRONICS CO.
that he had made the statement, saying, "It's just my word
against yours," and that he had told his informer that
Mrs. Clark had lied. McClure denied having asked
Mrs. Clark how the Union stood or how she thought the
election was coming out, and he denied the alleged threat
as to the restrooms. He first admitted that employees had
come to him and said that Mrs. Clark had told them
something on that subject. 15 However, when questioned as
to what was said in that connection, he had second
thoughts and rambled off into irrelevancies and, when
brought back to the question, denied what he had
previously admitted. The Trial Examiner does not credit
McClure's denials.
D. The Denial of "Equal Opportunity"
On November 18, 1965, the IUE distributed to the
employees entering the parking lot a leaflet in which,
among other things, it informed the employees of the filing
of the petition the day before in Case 26-RC-2545, and set
forth an "open letter" to Respondent requesting that in the
event Respondent held any meetings of the employees, the
IUE be given an opportunity to participate, or, in the
alternative, to reply under like conditions. A copy of the
leaflet, signed by Hobbs, was mailed to Respondent that
day by registered or certified mail and was received by
Respondent on November 19. On December 6, 1965, and
January 10-11, 1966, Milan Bendik, Respondent's
industrial relations manager, addressed the employees in
the plant during their working hours. On each occasion he
spoke twice, once to each shift. His speeches were written
and he did not depart from the prepared text. The
January 10-11 speech's included allegations that various
claims by the IUE were untrue and that those who helped
organize the Union were liars, frauds, Satan's helpers, and
Jezebels."
The Union's request for an opportunity to speak to the
employees was forwarded to Respondent's main office and
ignored.
E. The Alleged Discrimination
In Case 26-RC-2545 the Regional Director issued a
notice of hearing for Monday, November 29, 1965, to take
place at the Regional Office in Memphis, Tennessee,
situated some 50 miles from Forrest City. Hays and Dahl
attended on behalf of Respondent, along with
Respondent's attorney. Hobbs represented the Union. He
was accompanied by the four employees named in the
complaint as discriminatees; namely, Virginia Clark,
Frances Carolyn Bridges, Gladys Adamson, and Sharon
Whitehurst. On Tuesday morning, November 30, the four
employees found their timecards marked "N" with
reference to November 29, indicating that they had been
absent without giving notice. Failure to report an absence
41
within 4 hours after the scheduled starting time is one of
16 "minor offenses" listed in the Respondent's
Employees' Handbook, calling for various penalties
ranging from a written reprimand for the first offense to
discharge for any 5 "minor offenses." When protest was
made by the employees, Respondent's permanent records
were changed to show that Clark and Adamson had been
absent for personal reasons , with proper notice. 18 No
change was made for the other two alleged discriminatees
and their personnel records show absences without notice.
The Employees' Handbook requires that employees
obtain temporary leave of absence from the personnel
supervisor when absent for periods not exceeding 30 days,
and that if unexpectedly detained from work because of
illness or emergency, the personnel department be
informed by telephone promptly at the start of the shift. In
practice, however, notification to the employee's
immediate supervisor was deemed proper compliance
with the regulations; indeed, it was the procedure
apparently preferred by Hays, the personnel supervisor,
who testified, referring to the employee' s immediate
supervisor, "that is the person we are primarily interested
being informed if the party is to be out."
On Monday, November 22, Hobbs met with the
employees active in the IUE's campaign and requested
that some accompany him to the hearing to help keep him
informed as to questions which might arise there
concerning any individuals. The employees who were
thinking of going to the hearing asked whether they should
notify Respondent of their absence. Hobbs replied that
they could if they wished, but that it would not be
necessary since it was the Union's practice to notify
employers which employees would be absent from work to
attend a hearing. Hobbs did not have final word as to
exactly which employees would be with him at the hearing
until late Thursday, November 25. Feeling that a letter,
which was the usual means of communication employed
by the Union in such a situation , might not be received by
Respondent in time, Hobbs telephoned the plant on Friday
morning instead. He asked to speak to Hays, but as Hays
was not available, he spoke to Dahl, whose office was
located 30 feet from that of Hays.
Hobbs told Dahl that it was the Union's practice to
notify employers when employees were to be absent to
attend Board hearings, and he asked that the four
employees, whom he named, be excused from work the
following Monday. Dahl, who by his tone of voice indicated
that he objected to the request being made to him, replied
that all the girls had to do was notify their foreman. Hobbs
told Dahl that they might not have time since they
understood that he was going to give the notice. Dahl
insisted that notifying one's foreman was the usual
procedure, whereupon Hobbs requested Dahl to ask the
girls to call him so that he could so instruct them. Dahl
The record shows the following
TRIAL EXAMINER You say you didn't say in a joking way
perhaps to Mrs Clark that maybe she couldn't go to the
bathroom as often or as freely as she had in the past?
THE WITNESS. Sir, I wouldn't tell that to anybody
TRIAL EXAMINER. Not even in a joking manner?
THE WITNESS Not even in a joking manner.
TRIAL EXAMINER Did any employees come to you and say
that Mrs Clark had said something about that to them 2
THE WITNESS Yes, sir
TRIAL EXAMINER They did'
THE WITNESS Yes, sir
16 The speech was, apparently, made as close to the election as
possible without violation of the Board's 24-hour rule established
in Peerless Plywood Company, 107 NLRB 427 To comply with
that rule it was necessary to address the night shift employees on
January 10
" The testimony of Respondent 's witnesses that only those
who helped write the Union's literature were so referred to has not
been credited The witnesses for General Counsel testified
forthrightly and convincingly . Respondent , on the other hand,
declined to furnish a copy of the speech , which it admittedly had.
is Only the daily absentee list was changed Clark's and
Adamson's personnel records never had the adverse notations
since Respondent, as noted below, excused them before the time
came to make entries in their personnel folders.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, "My reply was that the girls would know how to
take care of it." Hobbs, however, testified that Dahl's
reply was, "Well, don't bother, we'll take care of it." This
conflict is discussed below.
Meanwhile, on Wednesday, November 24, Clark had
told her supervisor, Marvin Laws, that she would be
absent at the hearing Monday, and she repeated the notice
on Friday. That day Adamson told her supervisor, Roger
Jones, that she would be absent at the hearing Monday,
and Jones informed Hays' office. The foregoing is
established by uncontradicted evidence, which the Trial
Examiner credits.19 On Friday, also, Dahl told Hays that
he had received a telephone call from Hobbs. Hays
testified that that bare fact was all he could recall of the
conversation.20
At about 7:10 on Monday morning all unpunched
timecards were brought to Hays who placed on the cards
of the four alleged discriminatees the letter "N."21 The
day's absentee list was made up in several copies, listing
all employees not punched in. The list showed the names
of the four with the code letter "N" next to them. Three of
the copies were posted, one in Hays' office, one in the
general administrative office, and one on the production
schedule board. The last was in a foreman's office but was
widely used by various supervisors and employees who
had some reason to check production.
When the four girls punched in on Tuesday morning,
they discovered the "N's" on their timecards. Three,
Clark, Whitehurst, and Bridges, went to Hays' office and
asked why that had been done. Hays replied that' he had
not been aware of their absence until he saw them in
Memphis. When they told him that Hobbs had notified
Dahl, Hays said that that was not the proper procedure,
but he went to Dahl's office and brought Dahl back with
him. Dahl admitted to the girls having been notified by
Hobbs that he said that they had not followed the rules and
regualtions correctly, since he was not the one to be
notified. Taxed by Virginia Clark with not having taken the
trouble to tell Hays, whose office was 30 feet from his own,
Dahl replied that it would have been just as easy for her to
tell Hays. She said that she had notified her supervisor
that she was going to be off. At one point in the
conversation Hays said that he thought the matter could
be settled satisfactorily, but Dahl said that he thought the
girls deserved discipline the same as anyone else, since
they had not followed rules and regulations ; and he said
that Mr. Hobbs and Mr. Clark (Virginia Clark's husband)
were not going to tell him how to run the plant.
Later that day the fourth alleged discriminatee,
Adamson, asked Jones, her supervisor, why he had not
notified the personnel department that she was to be off on
Monday. Jones replied that he had done so. At her request
he went to Hays to find out the reason for the "N" on her
card. He returned in a few minutes and said that Hays
wanted to see her. Hays informed Adamson that she had
done the right thing in telling Jones that she would be off
on Monday. He also spoke to Laws that day. He testified
that he advised Laws that Clark's absence was excused
and her record changed to indicate a "personal absence."
Clark denied being so informed. However, the permanent
attendance records of both employees were made to show
"personal absence," meaning with proper notice. The
other two girls-Bridges and Whitehurst-where
summoned to Hays' office that afternoon and reprimanded
for not following the procedures prescribed by Respondent
for reporting absences. When they protested that Hobbs
had called Dahl, Hays asked who was paying their salaries.
He told them that the "N's" would stay on their records
permanently, but that Adamson and Clark's records would
be rectified.22
The foregoing account of the incidents between
November 22 and 30 is based for the most part on the
testimony of Hobbs and the four alleged discriminatees,
which the Trial Examiner has credited where in conflict
with the testimony of Hays. Hays' testimony did not ring
true in several respects. Thus, it seems improbable that
Dahl would tell him on Thursday that Hobbs had called
without so much as mentioning the subject of the call,
which was peculiarly within Hays' jurisdiction and which
Dahl had resented for that very reason. Hays apparently
recognized the incongruity of this testimony and therefore
testified evasively that if Dahl had mentioned it, he did not
remember. He told the girls on Tuesday morning that he
had marked their cards "N" because he had not known
that they were absent until he saw them at the hearing at
Memphis. However, he admitted on the stand having
found out about it at 8 o'clock Monday morning on the way
to Memphis, when Dahl gave him further information
about Hobbs' call.23 Moreover, his testimony that his usual
procedure was to check with an employee's supervisor
before marking his timecards "N," and Adamson's
uncontradicted testimony that Jones, her supervisor, said
that he had informed the personnel department of her
absence compel the inference that Hays knew the whole
story on Friday, or even on Thursday. Nevertheless, on
Tuesday morning, when the three girls alleged that Hobbs
had given notice of their absence to Dahl on Thursday,
Hays went through the charade of "checking" with Dahl
what he already knew; and at the hearing he testified that
he summoned Dahl to his office to "clarify" the call Hobbs
"' Neither Jones nor Laws testified . Adamson testified that
Jones informed her that he had notified the personnel
department
21 His testimony is as follows
TRIAL EXAMINER Did he say nothing about what Mr
Hobbs called him about9
THE WITNESS If he did I don't remember , sir, any details
of it
TRIAL EXAMINER Would you try to think back of what he
said about Mr. Hobbs ' telephone call9
THE WITNESS I don't really remember, sir
TRIAL EXAMINER ' Did he tell you that Mr Hobbs called
about some people going to appear at the hearing on the
following Monday9
THE WITNESS If he mentioned it I didn ' t understand it
that way At least my thinking was certainly muddy on it,
because I asked Tuesday morning, I asked Mr Dahl if he
would come into my office for clarification of the call, and we
discussed it in detail at that time
TRIAL EXAMINER But on Friday you lust have no idea
whether he mentioned the fact that some girls would be
absent on Monday?
THE WITNESS: If he did I don't recall it He could have but
it didn't register on me at that time
21 Hays' usual practice was to check with the employees'
supervisors before placing the "N" on the timecards
22 None of the four timecards were changed , the "N's"
remained on all week . Adamson testified that during the month
before the hearing she had noticed a girl's timecard , which had
originally been marked "N," changed to show "SF"
("sickness-family") in place of the "N "
23 He first testified that prior to Tuesday , November 30, Dahl
had told him nothing other than that he he received a call from
Hobbs
GENERAL INDUSTRIES ELECTRONICS CO. 43
made. Dahl collaborated in the fiction , testifying as to
Tuesday morning as follows:
. I was just on my way in, and Mr. Hays was waiting
for me at the door and said that these four girls were
in his office claiming that Mr. Hobbs had informed me
of their absence on Friday , and that they were going to
be absent on Monday . He asked me ifI knew anything
about it, With that we proceeded down to his office
and discussed it with the girls. [Emphasis supplied.]
It is found that Dahl informed Hays on Friday or earlier
that the four alleged discriminatees were to be absent at
the hearing on Monday.
The question of whether Dahl told Hobbs on Thursday
that he would take care of telling Hays or that the girls
would know how to take care of it will now be discussed.
All the evidence in the record concerning Hobbs'
method of conducting the organizing campaign points to
an effort by him to present a picture of a responsible,
orderly union official . His calling the employees ' attention
to the no-handbilling sign when they suggested literature
distribution on the parking lot, his planning a week ahead
of time to notify Respondent of the employees' intended
absence at the hearing , his inducing a witness for
Respondent to withdraw the statement the IUE literature
had been "forced" on employees , all seem inconsistent
with the idea implied in Dahl's version of the conversation
that he would have defied the latter 's statement indicating
that the girls were required personally to notify
Respondent of their intended absence on Monday. The
probabilities are against a union organizer who conducted
a campaign the way Hobbs did, jeopardizing the work
records of his four employee assistants by such flouting of
their Employer 's authority.
Dahl, on the other hand , testified about the absentee
episode with a lack of frankness . His testimony that on
Tuesday Hays asked him what he knew about the
Thursday conversation with Hobbs , when he had already
recounted the conversation to Hays, demonstrates a
purpose to mislead . The Trial Examiner therefore credits
Hobbs' version of the conversation and finds that Dahl
promised to notify Hays that the four employees would be
absent.24
F. Concluding Findings as to the Unfair Labor Practices
1. The McClure incident
The Trial Examiner has discredited McClure's denial of
a conversation with Mrs. Clark in which he threatened to
take away all restroom privileges from the employees.
Moreover , since McClure admitted that other employees
had learned about the threat and then , on second thought,
became evasive , and finally denied what he had admitted,
the Trial Examiner finds that he did make some sort of
threat and that the threat, as McClure necessarily could
foresee and expect, was reported to other employees.25
While the Trial Examiner is not convinced that the threat
as made was as drastic as Mrs. Clark remembered it, it is
found that McClure did threaten some curtailment of
restroom privileges if the IUE won the election and that
Respondent thereby violated Section 8(a)(1) of the Act.
2. The no-handbilling signs
No claim is made that the handbill regulation was made
for the specific purpose of hindering the IUE's 1965-66
organizational efforts. Nevertheless, without regard to
such specific purpose, it is as a general proposition an
unfair labor practice for an employer to require employees
to obtain prior permission to distribute literature on plant
parking lots.26 Respondent attempted to justify its rule as
reasonably necessary. It asserted that the rule enable it to
give handbillers instructions to distribute literature in
such a manner as to minimize the resulting litter, and also
would facilitate the task of identifying pilferers in case
articles were stolen from parked cars. As to the first
reason, Hays and Dahl contradicted each other as to the
instructions given or to be given, one testifying that the
handbills were to be placed on door handles and under
windshield wipers, and the other testifying that that was to
be avoided. As to the thefts, both officials testified that
there had been few, if any; and it was admitted that the lot
was unfenced and unguarded. Moreover, and more
important, much is at stake besides company
convenience. Respondent's undoubted right to control its
property does not permit it to deny employees access to a
nonworking area, such as a parking lot, for purposes of
effective communication with their fellow employees with
respect to self-organization and collective bargaining.27
Respondent's parking lot is no different from the usual one
and Respondent has demonstrated no special
circumstances requiring that the usual policy established
by the Board and accepted by the courts not be applied
there.
Counsel for the General Counsel contended at the
hearing that the handbilling sign forbade distribution of
union literature anywhere on the Respondent's
premises.28 The Employees' Handbook contained
Respondent's rule with respect to distribution of literature
within the plant , a rule which General Counsel does not
contend is illegal and which the Regional Director found to
be in compliance with the Board's order in Case
26-CA-1156. Employees would expect any modification of
that rule to be posted on the plant bulletin boards' signs on
the parking lot would presumably apply only to the parking
lot. The uncontradicted evidence that, notwithstanding the
signs, the IBEW distributed union literature within the
plant in prior election campaigns and that the IUE
24 The Trial Examiner has considered the possibility that
Hobbs misunderstood Dahl but has concluded that the weight of
the credible evidence supports the finding that Dahl actually said
he would take care of it.
25 The Trial Examiner does not regard as corroborative of
Mrs Clark 's testimony the mere fact, established by McClure's
admission , that she immediately told the other employees that he
had made the threat . What is corroborative is McClure's sudden
and unexplained evasiveness and change of testimony , indicating
that he was improvising. See Dyer v. MacDougall et al., 201 F.2d
265, 269 (C.A. 2), where the court said , in reference to a witness'
demeanor before the.tner of the facts.
Moreover, such evidence may satisfy the tribunal not only
that the witness ' testimony is not true , but that the truth is
the opposite of his story , for the denial of one , who has a
motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance , as to give assurance that
he is fabricating , and that, if he is, there is no alternative but
to assume the truth of what he denies.
26 N L R.B v Le Tourneau Company, 324 U.S. 793
24 Le Tourneau Company, 54 NLRB 1259, 1260, enfd. 324 U S
793.
28 The complaint does not specifically allege that Respondent
forbade distribution of union literature throughout the plant but
the question was fully litigated.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adherents distributed the "gremlins " at will within the
plant during the 1965-66 campaign indicates that the signs
were so understood by the employees . It is found that the
handbilling prohibition applied only to the parking lot.
It is found that by maintaining a regulation and signs
prohibiting employees from distributing union literature
on its parking lot without prior approval Respondent
interfered with , restrained , and coerced employees in the
exercise of their rights guaranteed under Section 7 of the
Act.29
3. The denial of "equal opportunity"
It has been found that Respondent had no unlawful no-
distribution or no-solicitation rule applicable to the plant
proper, but did unlawfully forbid distribution of union
literature in the parking lot. It has also been found that al-
though Respondent held meetings of the employees in the
plant during working time to discuss the Board election, it
ignored the IUE's request for an opportunity to participate
in such meetings or for equal opportunity to address the
employees under similar conditions. Counsel for the
General Counsel contends that in view of the unlawful
restriction on communication created by the handbilling
sign, it was a further unfair labor practice for Respondent
to refuse the IUE's request.
The Board has found that where an employer has a
broad no-solicitation rule he violates the employees' rights
under Section 7 of the Act if he speaks about union
matters to massed assemblies of the employees on
company property and then refuses a labor organization an
opportunity to speak to the employees, under similar
conditions.30 The basis for the policy is that a broad no-
solicitation rule, whether legal or illegal, creates such a
"glaring" imbalance in opportunities for communication
as to impair the employees' ability to learn the advantages
of union organization from others and to discuss them
among themselves.31 The Board does not lightly find that
an employer's control of his own property must be
regulated but does so only when regulation is actually
needed in order to allow the proper exercise by employees
of their rights guaranteed in Section 7 of the Act. See
General Electric Company and McCulloch Corp., 156
NLRB 1247. Accordingly, it is only where the imbalance of
access to employees is "glaring" that the Board requires
an employer to permit a union to use his premises for
organizational purposes on pain of not using them himself
to oppose organization.
Respondent's illegal handbilling prohibition, limited as
it was to the parking lot, did not per se create a glaring
imbalance. Distribution of literature was still possible
within the plant, at the parking lot entrance and exit, and
even at the timeclock prior to and after working hours.32
The question is not reached of what Respondent's duty
would be with respect to granting "equal opportunity" if
the regulation had been imposed for the purpose of
impeding self-organization or if permission to distribute
literature in the parking lot had been requested and had
29 Distinguish the Board's rule permitting department stores to
enforce prohibitions on the distribution of union literature and
solicitation of union membership in any area open to the public
May Department Stores Company, 59 NLRB 976, 981.
30 This is so whether the broad no-solicitation rule is illegal, as
in American Tube Bending Co., Inc, 205 F 2d 45 (C A 2), enfg.
102 NLRB 735, or, because of special circumstances, is legal, as
been refused.33 The IUE's failure to request such
permission for its employee assistants, and the fact that
the question was discussed primarily when rain interfered
with distribution at the lot entrance, suggest that Hobbs
did not consider that particular means of communication
of importance. Hobbs so indicated at the hearing when he
said, "As a rule we don't distribute literature on a parking
lot," and when he indicated resentment at a witness'
suggestion that leaflets had been forced on
employees-which is exactly what happens when leaflets
are left on cars in parking lots. Hobbs very well may have
considered the personal contact he achieved with his
adopted method of literature distribution an advantage. He
stated that except on rainy days he missed only one out of
every three or four cars. Moreover, except on the day
before the election, Hobbs never chose to distribute
literature at the parking lot exit where, because of traffic
congestion, he could have reached virtually every car. The
foregoing facts do not in any way detract from the
seriousness of Respondent's violation of the employees'
rights in forbidding distribution of union literature on the
parking lot without permission. The existence of
alternative means of communication does not permit an
employer to forbid union activity by employees in
nonworking areas on nonworking time. However those
circumstances do warrant the inference that the IUE was
no so handicapped by the prohibition that an imbalance of
access to the employees was created which was so glaring
as to require Respondent to forego its right to discuss
unionization with its employees on its own premises unless
it allowed the IUE equal opportunity to do so.
It is, accordingly, found that Respondent did not violate
the Act by failing to grant the IUE an opportunity to attend
and participate in meetings held on company property
between Respondent and its employees or to address the
employees under like conditions. It is recommended that
the allegation in the complaint that Respondent by such
failure engaged in an unfair labor practice be dismissed.
4. The discrimination
What stood out in Bendik's speech to the employees in
the recollections of the employee witnesses for General
Counsel who testified about it was that it was strongly
antiunion and that he accused those who helped the IUE of
being liars, sinners, Satan's helpers, and, if women,
Jezebels. Examples of Bendik's justification of those fiery
words were that the IUE's claim to represent 450,000
workers should be classified as a lie because it had only
271,000 or possibly 255,000 members; and that the IUE's
claim that Respondent wanted to exclude 5 employees
from the unit in the Board election was a lie because,
although Respondent refused to sign an agreement for a
consent election without their exclusion and thus forced
the case to hearing on the issue, Respondent at the hearing
took no position but merely left to the Board the question
of the five employees' inclusion in the Unit. (The Board
included them.) Bendik, in testifying, blandly admitted
in The May Department Stores Company, 136 NLRB 797,
enforcement denied 316 F 2d 797 (C A 6)
31 See The May Department Stores Company, supra
32 See Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 620,
see also Willow Maintenance Corp , 143 NLRB 64.
33 Such refusal cannot be presumed See N L R B. v United
Steel Workers of America (Nutone), 357 U S. 357.
GENERAL INDUSTRIES ELECTRONICS CO.
that he categorized Hobbs and the IUE as liars without
knowing for sure whether or not they had lied.34
While counsel for the General Counsel specifically
stated that he was not attacking Bendik's speech as
coercive,35 the degree of the vituperation employed does
show Respondent's feelings about the IUE and establishes
a union animus which may throw some light on what its
motivations were in taking the action which it took with
respect to the four employees who assisted the IUE by
attending the Board representation hearing on
November 29, 1965.
It has been found that Hays knew at least by Friday,
November 26, that Hobbs had notified Dahl that the four
girls were to be absent at the Board hearing on Monday.
Hays also knew on Friday that Adamson had complied
with normally acceptable procedures by notifying her
supervisor, Jones. Moreover, in view of his testimony that
his procedure was to check with supervisors before
marking an employee's card "N," Hays knew, or
deliberately avoided knowing, that Clark had notified her
supervisor, Laws. It has also been found that on Tuesday
morning Hays pretended not to have known about the
girls' absence until he saw them in Memphis, and
pretended to have needed "clarification" of Hobbs'
telephone call from Dahl-this notwithstanding that he
admitted that Dahl had told him details of the call
previously. And Dahl testified that Hays asked him on
Tuesday morning "if I knew anything about it," referring
to the same telephone call.
Respondent contended at the hearing that the "N's"
were justified because the employees had failed to follow
proper procedure in that, instead of reporting to their
supervisor or the personnel office, they let Hobbs call up
Dahl. Counsel for Respondent stated:
That is what we have been trying to show all
throughout this. It was because they did not follow
procedure, and certainly not because of any union
activity or affiliation, and there are 450 other people
out there, too. And we have to treat them all alike as
much as possible.
Respondent takes the same position in its brief, stating:
The contention of the Respondent is simply this. This
company has a well-known procedure to be followed
in regard to absences. . Two of these four
employees failed to follow the normal procedure of
notifying either the personnel department or their
supervisor that they would be absent. As a result "N"
was placed on their permanent record indicating that
they were absent without permission .... The main
point of Respondent is that it has a procedure to
follow and it expects every employee to follow it. The
Union, in effect, is asking Respondent to discriminate
against the remainder of the employees by giving
these employees special privileges.
Respondent states further that, since the employees did
not actually know that Hobbs had telephoned Respondent
as promised until they were on their way to Memphis, they
had been remiss in their duty to Respondent to make sure
that Respondent knew that they were going to be absent.
None of the foregoing contentions of Respondent could
apply to Adamson or Clark. Both had followed proper
procedures but nevertheless found what was, in effect, a
45
disciplinary warning on their timecards on Tuesday
morning. The subsequent revocation of the "N" for
purposes of their permanent records does not lessen the
threatening nature of the warning. These employees,
notwithstanding their perfect conduct, were plainly on
notice to watch their step. Respondent offered no
explanantion to the employees or at the hearing of why
Hays disregarded Jones' notice to the personnel
department that Adamson was to be absent or why he
failed to consult Laws and Jones in accordance with his
usual procedure before marking Adamson's and Clark's
timecards "N." The inference to be drawn is that Hays
marked those two employees' cards "N" as a reprisal for
daring to assist the IUE, to which Respondent was so
bitterly opposed.
Respondent's contentions as to why the employees'
timecards were marked "N" are equally inapplicable to
Bridges and Whitehurst. Assuming that two employees
did not follow the prescribed procedures, it has been found
that Respondent's plant manager accepted Hobbs' notice
to him on their behalf. In view of that finding the inference
to be drawn is that Dahl, either on further consideration or
on instruction from higher authority, decided to take
reprisal against them on the pretextual ground that they
had not complied with regulations.
It may be noted that the Trial Examiner would reach the
same result even if Dahl had told Hobbs that the girls
would know how to take care of the matter. Hays testified
that failure to call in to report an intended absence was a
breach of company rules, but he added, "but it is one that
is not strictly enforced." The record establishes that
employees often had the notification given by a relative or
a neighbor, and the Employees' Handbook states that
employees unexpectedly detained from work should
telephone promptly to explain or, "If you are unable to
phone the message yourself, have someone do this for you
without fail." Respondent tried to establish that vicarious
notification was permissible only where the employee
himself was unable to call. However, while Hays testified
as to "general practice," he did not say that messages
from other persons were unacceptable unless an employee
was unable to call. It is highly unlikely that an employer
would maintain any such requirement beyond requiring
that the message be delivered by a person he could
assume was acting for the employee. An employer's
interest is, presumably, to have substantial compliance
with regulations, not irrelevant niceties. No prior instance
was cited by Respondent where it refused to accept notice
by someone other than the employee because the
employee was not disabled or for any other reason; and, as
already noted, Hays' testimony, reasonably interpreted,
was not to that effect. Even assuming, therefore, that Dahl
told Hobbs that the girls knew how to take care of their
intended absence, his refusal to accept Hobbs' notice in
the circumstances and his insisting thereafter that the four
girls be disciplined, would have constituted a departure
from Respondent's usual policy of not enforcing strictly
the rule as to notice. The reasonable inference would be
that such departure would have been dictated by
Respondent's animus toward the IUE.
Respondent contends that the "N's" on Clark's and
Adamson's timecards do not constitute discrimination
34 Counsel for Respondent in his brief pointed out other alleged
inaccuracies in IUE literature to justify Bendik's language
35 The Regional Director overruled an objection based upon the
speech and no exception was taken . The complaint does not
allege that the speech itself was coercive.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since the timecards are not part of what Respondent
considers their permanent record. Even assuming this to
be the fact, Clark and Adamson were subject to
discriminatory working conditions at least until they
learned that Respondent accepted their absence as
excused. Moreover, Clark was reprimanded orally by Hays
and Dahl for failure to follow "proper procedure."36 The
mere fact that the employees' different status had not yet
been recorded on Respondent's "permanent" record does
not mean that they did not have that status.
By subjecting the four employees to discriminatory
action which constituted a departure from normal
procedure Respondent was requiring of them a different
standard of conduct from what it required of other
employees. Respondent thus imposed on the four
employees discriminatory conditions of employment
calculated and intended to discourage membership in the
IUE. While some corrective action was taken with respect
to Clark and Adamson the discrimination is still fully in
effect as to the other two, who are thus subject to
discharge for four "minor offenses" as against five for
other employees.
It is found that Respondent orally reprimanded Clark,
Bridges, and Whitehurst, and placed "N's" on their
timecards and on that of Adamson, and further
reprimanded Bridges and Whitehurst and placed
discriminatory notations on their permanent personnel
records, because they joined and assisted the IUE and
engaged in union activities and other concerted activities
for the purpose of collective bargaining and other mutual
aid and protection. It is further found that Respondent by
such actions discriminated against said employees in
regard to their tenure and terms and conditions of
employment, thereby discouraging membership in the IUE
and that it thereby interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in
Section 7 of the Act.
G. Concluding Findings and Recommendations as to the
Objections
Objection 3. While maintenance of the no-handbilling
sign on the parking lot was an interference with the
employees' rights under Section 7 of the Act, the question
still remains of whether it had any material effect on the
results of the election. As already noted, Hobbs elected
not to utilize several other means of communication with
the employees which were available-e.g., distribution by
outside organizers at the lot exit, or distribution by
employees at the entrance to the plant proper or within the
plant; and he stated that the IUE does not ordinarily
distribute literature on a parking lot. Such distribution was
suggested only in limited circumstances. If Hobbs had
desired to use that means of reaching voters, he would
have made some attempt to obtain permission for some of
his employee assistants to make the distribution. In view
of these facts it is inferred that the sign and the prohibition
did not affect the results of the election. It is
recommended the objection 3 be overruled.
Objection 4. While the denial of equal opportunity to
address the employees in the face of the illegal no-
36 Whitehurst and Budges were also included in this oral
reprimand
" See General Electric Company and McCulloch Corp, 156
NLRB 1247, both of which were representation cases
handbilling sign has been found not to have been an ufair
labor practice, that does not dispose of the question of
whether the election was a fair one in view of such denial.
As already noted, the Board until now has not been willing
to impose on employers the general duty of allowing labor
organizations equal opportunity to address employees on
company premises when the employer chooses to do so.37
The Board has recognized that an employer's right to use
his own premises should not be regulated in the absence of
a real need to protect employees' rights under the Act. The
unfairness of an election where there has been a failure to
grant "equal opportunity" does not lie in the employer's
illegal acts; it lies primarily in the employees' need, in the
circumstances, for that mode of communication. While a
broad no-solicitation or no-distribution rule, whether legal
or illegal, does prevent communication concerning self-
organization to such an extent as to make an election
unfair when the employer, and the employer alone, can
address a meeting of his employees on company premises,
Respondent's limited and nondiscriminatory prohibition,
standing alone and in the absence of a denial of a request
for permission to distribute literature in the parking lot, is
not of comparable dimension. The IUE, notwithstanding
the illegal sign, had available to it substantially all the
means of communication with employees normally relied
on by labor organizations.38 As no special need for an
opportunity to address the employees has been proved,
and as the Board has not established a policy of requiring
that such opportunity be regularly granted, it is
recommended that objection 4 be overruled.
Objectton 6. The discriminatory marking of the
timecards affected only four employees directly. However,
the record shows that employees saw each other's
timecards. Moreover, a discriminatory action taken
against four union adherents simultaneously as a direct
outgrowth of so important a union activity as attendance at
a Board hearing would be talked about and become
generally known among the employees. The election was
held more than a month later. By that time, it may be
assumed, it had become generally known that the "N's"
had been in effect canceled as to two of the employees; but
it was equally generally known that they had not been
canceled as to the other two. The employees were thus all
plainly on notice that anyone who helped the Union would
be punished if Respondent could find a pretext for doing
so. Even the cancellation of Clark's and Adamson's "N's"
could not cure the coercive effect which Respondent had
accomplished. All the cancellations meant was that those
two employees were lucky to get off this time; employees
would still feel that Respondent was on the lookout for the
slightest excuse to discipline them-or any other union
adherent-in the future. Respondent's reprisal and threat
of reprisal against active IUE adherents implied a threat of
reprisal against all the employees if, in the face of
Bendik's strictures, a majority had the temerity to vote for
the Union. Employees faced with such a warning might
feel forced to put aside any desire they had for collective
bargaining and vote against representation. For these
reasons it is recommended that objection 6 be sustained
and the election set aside.
38 The Union did not have available the names and addresses of
all, or even most of, the employees. The election was held poor to
the effective date of the Board's policy requiring employers to
furnish such material for the use of labor organizations during
election campaigns
GENERAL INDUSTRIES ELECTRONICS CO. 47
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
It is found that the activities of Respondent set forth
above in section III, above, occurring in connection with
its operations described above in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that Respondent has engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below
requiring Respondent to cease and desist from said unfair
labor practices and to take certain affirmative action
which will effectuate the policies of the Act.
The presence of the adverse notations on the personnel
records of Whitehurst and Bridges constitutes a constant
threat that they may suffer some disadvantage in the
future from those notations. In order to insure that this not
occur and to give them and other employees assurance
that it will not occur, it is recommended that Respondent
be required to expunge from its permanent records the
notations that those employees were absent without notice
on November 29, 1965, and that Respondent enter thereon
notations such as are usually made when employees are
absent with permission and on proper notice.39 There is no
need to make any changes on the timecards of these two
employees or of Adamson and Clark, nor is it necessary to
change the absentee lists for November 29.
Respondent may not require its employees to obtain
permission as a condition to distributing union literature
on its parking lot nor may it maintain a sign subject to
interpretation as requiring employees to obtain such
permission for such literature. It is therefore
recommended that no such rule or sign be maintained.
It is also recommended that Respondent cease and
desist from infringing in any other manner upon the rights
guaranteed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and of
the entire record in this case, the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Respondent, General Industries Electronics
Company, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. International Union of Electrical Radio and Machine
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
4. By discriminating in regard to the tenure and terms
and conditions of employment of its employees, thereby
discouraging membership in a labor organization,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
5. By interfering with, restraining , and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, Respondent, General
Industries Electronics Company, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union of
Electrical Radio and Machine Workers, AFL-CIO,
hereinafter called the IUE, or any other labor organization,
by imposing upon Virginia Clark, Frances Carolyn
Bridges, Gladys Adamson, Sharon Whitehurst, or any
other employees, discriminatory rules or practices with
respect to absence from work, or by otherwise
discriminating against employees in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) Threatening to take away any privileges from
employees if the employees designate the IUE or any other
labor organization as their bargaining representative.
(c) Maintaining or enforcing any regulation or sign
prohibiting employees from distributing literature on
behalf of any labor organization during nonworking time in
Respondent's parking lot or in any other nonwork area of
Respondent's premises.
(d) 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
representatives of their own choosing, or 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.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Expunge from the respective personnel records of
Sharon Whitehurst and Frances Carolyn Bridges the
notations indicating that they were absent without notice
on November 29, 1965, and enter thereon notations
indicating that they were absent that day after proper
notice and with permission.
(b) Post at its office and place of business located in
Forrest City, Arkansas, copies of the attached notice
marked "Appendix." Copies of said notice, to be furnished
by the Regional Director for Region 26, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and shall
be maintained by it for 60 consecutive days thereafter, in
conspicuous places including all places where notices to
its employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.40
ax See Ktrckof Plumbing and Heating Co , 149 NLRB 1158
4° In the event that 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. In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director for Region 26, in If employees have any question concerning this notice
writing, within 20 days from the date of the receipt of this or compliance with its provisions, they may communicate
Decision, what steps Respondent has taken to comply directly with the Board's Regional Office, 746 Federal
herewith .41 Office Building, 167 North Main Street, Memphis,
" In the event that this Recommended Order is adopted by the Tennessee 38103, Telephone 534-3161.
Board , this provision shall be modified to read "Notify the
Regional Director for Region 26, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
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 impose on Virginia Clark, Frances
Carolyn Bridges, Gladys Adamson, Sharon
Whitehurst, or any other employee, discriminatory
rules or practices with respect to absence from work,
or otherwise discriminate against employees in regard
to their hire or tenure of employment or terms or
conditions of employment, because they join or assist
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization.
WE WILL NOT threaten to take away any privileges
from our employees if they designate the IUE or any
other labor organization as their bargaining
representative.
WE WILL NOT maintain or enforce any regulation or
sign prohibiting employees from distributing
literature on behalf of the IUE or any other labor
organization in our parking lot or in any other
nonwork area of our premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
bargain collectively through representatives of their
own choosing, or 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.
WE WILL expunge from the personnel records of
Sharon Whitehurst and Frances Carolyn Bridges the
notations indicating that they were absent without
notice on November 29, 1965, and will enter thereon
notations indicating that they were absent that day
after proper notice and with permission.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the IUE
or any other labor organization.
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.
New York Printing Pressmen 's Union No. 51,1
International Printing Pressmen and
Assistants Union of North America,
AFL-CIO and New York Press Assistants'
Union No. 23 ,1 International Printing
Pressmen and Assistants Union of North
America , AFL-CIO and The Great Atlantic
& Pacific Tea Co., Inc.,' and New York
Paper Cutters ' & Bookbinders ' 4 Union
No. 119 , International Brotherhood of
Bookbinders , AFL-CIO. Case 29-CD-30.
February 20, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by The Great Atlantic & Pacific Tea
Co., Inc., alleging a violation of Section 8(b)(4)(D) of
the Act by the Press Assistants. The charge alleges,
in substance, that the Pressmen threatened,
coerced, and restrained the Employer with an object
of forcing or requiring the Employer to assign
particular work to employees represented by the
Press Assistants rather than to employees
represented by Local 119. Pursuant to notice, a
hearing was held before Hearing Officer Jordan
Ziprin on September 12 and 13, 1966. All parties
appeared at the hearing and were afforded full
opportunity to be heard, to examine witnesses, and
to adduce evidence bearing on the issues. The
rulings of the Hearing Officer made at the hearing
are free from prejudicial error and are hereby
affirmed. The Employer, the Press Assistants, and
Local 119 have filed briefs, which have been duly
considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following findings:
Herein called the Pressmen
s Herein called the Press Assistants
9 Herein called the Employer
' Herein called the Local 119 119-A is an auxiliary of
Local 119.
163 NLRB No. 2