GF Business Equipment, Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1974

215 N.L.R.B. 872 (N.L.R.B. 1974)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crenlo, Division of GF Business Equipment , Inc. and
Terry J. Rich and Adrian I. Brakke. Cases
18-CA-3956 and 18-CA-3956-2
December 27, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 24, 1974, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a brief in support thereof, and Respondent filed
exceptions with a supporting brief and a brief in reply
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
Our dissenting colleague would find that Respon-
dent's discharge of second-shift employee Terry J. Rich
violated Section 8(a)(1) of the Act. The Administrative
Law Judge found and we agree that Rich was dis-
charged for violating a valid rule prohibiting unauthor-
ized entry into plant premises. On the evening of Au-
gust 16, 1973, • during breaktime, a group of
second-shift employees (including Rich) agreed to en-
ter the plant the next morning in support of a work
stoppage planned by first-shift employees.' On the
morning of August 17, when Respondent's officials
became aware of the planned work stoppage and sup-
porting action of the second-shift employees, the deci-
sion was made to post two supervisors at the front gate
to warn the second-shift employees that they were not
authorized to enter the plant and that an unauthorized
entry would subject them to disciplinary action. De-
spite this warning and the existence of a company rule
prohibiting unauthorized entry, Rich and a group of 17
to 20 employees did enter the plant. Although Rich
denied leading the second-shift employees into the
plant, it is undisputed that management officials were
told and acted under the belief that Rich in fact did lead
the group into the plant.
Our colleague claims in part that Respondent dis-
criminatorily enforced the rule in that only Rich, who
was purportedly the leader, was discharged. However,
where a group of employees engages in unprotected
concerted activity, an employer may lawfully make an
example of those employees it believes instigated the
unprotected activity.2
Our dissenting colleague also claims that, even if
Respondent had cause to discharge Rich based on a
violation of the rule against unauthorized entry, Rich's
discharge was also based partially on protected activity.
It is true that Respondent was aware of Rich's active
participation in the meetings on August 16 and that
when Rich was discharged he was told it was for being
an instigator of the work stoppage. However, undis-
puted evidence indicates that the decision to discharge
Rich was not made until 9:30 a.m., after management
received the report that Rich had defiantly led the
second shift into the plant and, further that it was on
the basis of these actions that the decision was made to
discharge him. As to the statement to Rich at the time
of his discharge about his role in instigating the work
stoppage, Rich's leadership role involved unprotected
activity; i.e., entering the plant in violation of a valid
rule. Furthermore, at the time of the discharge, the
statement was made to a group consisting of five first-
shift employees and Rich and did not necessarily mean
the same thing with regard to Rich, whose conduct was
different as with regard to the other five.
We respectfully suggest that out colleague reads too
much into such a spontaneous statement, made in the
midst of an emotionally charged situation. In short, we
do not think the preponderance of the evidence esta-
blishes that Rich was discharged for engaging in pro-
tected activity.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified, and hereby
orders that the Respondent, Crenlo, Division of GF
Business Equipment, Inc., Rochester, Minnesota, its
officers, agents , successors, and assigns , shall take the
action set forth in the said recommended Order, as
modified below:
Insert the following paragraph as paragraph 2(c) of
the recommended Order and reletter the subsequent
paragraph accordingly:
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order."
We adopt the Administrative Law Judge 's finding that the work stop-
page participated in by first -shift employees was protected concerted activ- 2 See, e .g., McLean Trucking Company, 175 NLRB 440 , 450 (1969),uy. Alton Box Board Company Container Division, 155 NLRB 1025 (1965)
215 NLRB No. 151
CRENLO, DIVISION OF GF BUSINESS EQUIPMENT, INC 873
MEMBER JENKINS, dissenting in part:
I agree with my colleagues' finding that the work
stoppage of August 17 was protected and their finding
that the discharges of Asleson, Baugh, Billings, Bue-
glar, and Zahradik were violative of Section 8(a)(1) of
the Act. I do not agree that Rich is in a different
situation from these five employees because he was a
second-shift employee and thus was not scheduled to be
in the plant at the time the stoppage took place. The
reason relied upon for the different treatment of Rich
does not hold up in light of the record evidence.
The admitted direct evidence is that Rich was dis-
charged for his participation in the August 17 stoppage
by Respondent's unrepresented employees. More
specifically, the credited record evidence shows that
Rich was identified by Pressroom Foreman Wollenberg
as one of the instigators or leaders of the effort by the
unrepresented employees to seek a meeting with Re-
spondent's management for the purpose of voicing
their protest over the amount of a wage increase and
that General Manager Bouffard told Rich and the five
other employees that were discharged with him that
they were being discharged for being instigators of the
stoppage.
In finding that Rich was in different circumstances
from the other employees who were discharged, my
colleagues rely on evidence that Rich violated Respon-
dent's rule against unauthorized entry into the plant.
This reliance is misplaced in view of the record evi-
dence herein. Thus, the credited record evidence shows
that Rich was told he was being discharged for an
alleged breach of the aforementioned rule. Further-
more, the undisputed evidence shows that some 17 to
20 other second-shift employees breached the same rule
on the same occasion as did Rich in order to join the
stoppage by the first-shift employees to voice their pro-
test over the amount of the wage increase. The fact that
Respondent applied sanctions only against Rich and
Brakke3 for the breach of the aforementioned rule in-
validates my colleagues' reliance on the alleged absence
of any evidence to show that the rule against unauthor-
ized entry has been discriminatorily applied or en-
forced. That fact also shows that Respondent was not
so much motivated by the enforcement of the afore-
mentioned rule as it was motivated by the removal of
the leaders of the activity found to be protected.
Even assuming arguendo that Respondent had cause
to discharge Rich based on a violation of the `rule
against unauthorized entry into the plant, I am per-
suaded, based on Bouffard's statement at the time of
termination, set forth above, that among the reasons for
discharging Rich was Rich's role in the activity found
to be protected. Accordingly, I would find that the
3 The discharge of Brakke was found violative of Sec 8(a)(1) and (3) on
another ground
discharge of Rich violated Section 8(a)(1) of the Act.
Walter S. Johnson Building Co., Inc., 209 NLRB 428
(1974).
In response to my colleagues, I would suggest that
the question presented by Rich's discharge is whether
the evidence in fact shows that his discharge was predi-
cated solely on his unauthorized entry into the plant.
My colleagues find that the decision to discharge Rich
was not made until 9:30 a.m., after Rich allegedly led
the second-shift employees into the plant, and they
suggest that the decision to discharge Rich was sepa-
rately made on grounds different from those involved
in the simultaneous discharge of the other five em-
ployees. The evidence shows that General Manager
Bouffard made a single decision to discharge all six
employees, including Rich, after the second-shift em-
ployees joined in the protected activity and at a time
when Bouffard had knowledge of Rich's role in both
the second-shift employees' entry into the plant and the
protected activity. Thereafter, Bouffard instructed
Wollenberg to have the six employees, including Rich,
report to the dispatch office. When the six employees
appeared, Bouffard told them they were being dis-
charged for being instigators of the work stoppage.
Bouffard said nothing to the six employees that would
indicate that Rich was being discharged for a reason
different from the other five employees. In view of
Bouffard's decision to discharge the six employees
together, at the time the protected activity was taking
place, there is no discernible basis for my colleagues'
speculation that Bouffard's statement-the only overt
explanation of the reason for the discharge-did not
necessarily mean the same thing as to Rich that it did
as to the other five employees. Thus I must conclude
that among the reasons for Rich's discharge was his
role in the protected activity.4
In all other aspects, I join in the determination made
by my colleagues.
4 See Dee Knitting Mills, Inc., Dippy Knits, Inc, and Three D Knitting
Mills, Inc, 214 NLRB No 138 (1974), in which a similar unlawful discharge
of a group of employees was held to include an employee who participated
in the protected activity , even though she was not present when the others
were discharged
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative, Law Judge. Upon in-
dividual charges filed by Terry J. Rich and Adrian I. Brakke
on August 20 and 23, 1973, respectively, in Cases
18-CA-3956 and 18-CA-3956-2, the General Counsel, by
the Regional Director for Region 18, issued separate com-
plaints on January 10, 1974. Concurrently, the Regional Di-
rector issued an Order consolidating the two cases for pur-
poses of hearing and decision. This consolidated proceeding
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was heard at Rochester, Minnesota, on February 12-15,
1974, pursuant to due notice.
The basic issue involved herein is whether or not work
stoppages engaged in by employees on August 16 and 17,
1973, were protected concerted activities.' The General
Counsel contends in his complaint in Case 18-CA-3956 that
the work stoppages were protected concerted activities and
the discharges of Charging Party Rich and five other
employees' on August 17, 1973, because of their participa-
tion in the stoppages violated Section 8(a)(1) of the Act.'
The complaint in Case 18-CA-3956-2 alleged that Respond-
ent violated Section 8(a)(1) and (3) of the Act by discharging
Charging Party Brakke on August 20, 1973, because of his
participation in the work stoppage of August 17 and because
of his alleged violation of a no-solicitation rule which the
General Counsel contends is unlawful. The Respondent has
denied the commission of any unfair labor practices.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by the
General Counsel and the Respondent, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The facts found herein are based upon the pleadings. The
Respondent, an Ohio corporation, is engaged in the manufac-
ture of sheet metal cabinetry, such as tractor cabs at its two
plants in Rochester, Minnesota. During the calendar year
1973, which is representative of its operations during all times
material herein, Respondent, in the course and conduct of its
business operations, manufactured, sold, and shipped from
the Rochester, Minnesota, plants, goods valued in excess of
$50,000, which were shipped to its Rochester, Minnesota,
plants from points directly outside the State of Minnesota.
Based on the foregoing, I find that Respondent is engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
General Drivers, Helpers, Warehousemen and Inside Em-
ployees Local No. 161, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
Unless otherwise indicated , all dates hereinafter refer to 1973
2 Archie Asleson, Dennis Baugh , Marvin Billings, Paul W. Bueglar, and
Jim Zahradik.'
3 After the, Respondent rested his case, the General Counsel moved to
amend the complaint in Case 18-CA-3956 to allege that Respondent's
failure to recall Asleson also violated Section 8(a)(4) of the Act, contending
that such inaction was because Asleson had filed charges or had given
testimony under the Act Over Respondent 's objection, I granted the Gen-
eral Counsel's motion The testimony concerning Respondent 's failure to
recall Asleson, more fully described later in this Decision , was adduced
through Respondent 's last witness , General Manager Bouffard In permit-
ting the amendment to the complaint, I granted Respondent's counsel per-
mission to recall any witnesses for further testimony relating to the Section
8(a)(4) allegation.
III THE ALLEGED UNFAIR LABOR PRACTICES
Only one of the two plants operated by the Respondent in
Rochester, Minnesota, is involved in the proceeding.' On
August 15, the employees were notified by the Respondent
that their annual plant raise would be 25 cents an hour effec-
tive August 18. At the time of the increase, the Union was
conducting an organizational campaign.' The first-shift em-
ployees in the pressroom were dissatisfied with the amount of
the increase. On August 16, shortly before the 11:30 a.m.
lunchbreak, Dennis Baugh , a pressroom employee, informed
Jerry Wollenburg, the pressroom foreman, that the press-
room employees wished to speak to him at noon. Wollenburg
agreed to the meeting although he was not told the purpose
of the requested meeting . Wollenburg checked with Plant
Manager McKibben who told him to meet with the em-
ployees and then report back to him. At noon the employees
gathered in the pressroom in front of press l?rake 749 and
Wollenburg came out of his office to speak to them. He told
the employees no names would be taken and asked what they
had to say. Thereupon, the employees complained about the
amount of the wage increase, remonstrating that it was not
enough to cope with the inflationary spiral . Other complaints
were mentioned but the basic dissatisfaction expressed by the
employees focused on the amount of the wage increase an-
nounced the day previously. The employees asked for a meet-
ing with management officials to discuss the raise., The
meeting lasted about 20 minutes, concluding with Wollen-
burg telling them, "Well, I guess I asked them if that was all
and I said that I would present it to management and get back
to them and broke up and they went back to work."' The
employees then returned to work. When McKibben returned
from lunch, somewhere between 1 and 1:10 p.m., Wollenburg
reported the complaints voiced by specific individuals and
McKibben wrote down the names. McKibben instructed him
to report any further developments. After Wollenburg's re-
port to McKibben, one of the pressroom employees informed
Wollenburg that he had been told by Baugh the employees
would stop work at 2 p .m. if management didn't meet with
the employees by that time. Wollenburg immediately notified
McKibben. McKibben told Wollenburg that in the event the
employees stopped work he should direct them to return to
work or else to punch out, leave the plant, and report to the
personnel office the following morning subject to disciplinary
action. In the meantime, the pressroom employees had talked
among themselves and the word was circulated that if man-
agement didn't meet with them by 2 p.m. they would stop
The first shift was from 7 a in to 3:30 p in , with a coffeebreak from 9 20
to 9 30 a in and lunch from 11 30 a.m to noon The second shift was from
3 45 p in to 12.15 a in with dinner from 6 to 6 30 p in and a coffeebreak
from 9to910pm
5 The Union filed a petition (Case 18-RC-9655) on July 23 An election
among the production and maintenance employees in both plants was con-
ducted on September 12 pursuant to a stipulated consent-election agree-
ment approved by the Regional Director on August 3. The Union failed to
attain a majority of the ballots cast and the results were certified on Septem-
ber 19.
6 Asleson, Baugh, Billings, Beuglar , and Zahradik , all employed on the
first shift in the pressroom, attended the meeting and voiced their com-
plaints, together with other employees Plant Manager McKibben and Gen-
eral Manager Bouffard were not in the plant at the time
7 When recalled later in the hearing by Respondent 's counsel during its
presentation, Wollenburg testified he did not tell the employees he would
report back to them I credit his earlier version
CRENLO, DIVISION OF GF BUSINESS EQUIPMENT, INC 875
work at that time and again ask for a meeting with manage-
ment to discuss the pay increase.
At 2 p.m. the employees in the pressroom ceased working
and gathered in the same area where the noon meeting had
been held. Shortly after they assembled, Wollenburg came
out of his office and instructed them to return to their jobs
or punch out and report to the personnel office the following
morning subject to disciplinary action. Wollengurg did indi-
cate to them that management officials would talk to them at
a later time. At one point he testified, "Well there wasn't too
much at that 2 o'clock meeting. It was just mainly that I had
told them they would have to report back to work or else
what I have told you and they asked me how come manage-
ment wouldn't come down. They asked me if management
would come down. I told them that part of management
wasn 't here, Mr. Bouffard and Mr. Guidinger were gone....
Mr. Bouffard and Mr. Guidinger were out of the plant
and I couldn't get an answer today, and I was asked repeat-
edly if they would come down, if management people would
come down and address them and talk to them and I told
them that they probably would." At a later point in his
testimony, he testified his response to the employees was,
"Somehow I'll get somebody down here, and I think I said
that a couple of times. I said , "I'll do what I can."' Of the
approximately 40 employees who ceased working, some
10-14 returned to work immediately after Wollenburg's
instructions.' The others remained in the area. Wollenburg
notified McKibben that most of the employees did not return
to work even after his instructions. McKibben asked to be
kept informed. The employees who had remained away from
their work, even after Wollenburg's instructions, gradually
drifted back to work and by 3 p.m., the stoppage was
over.9 Although apparently unknown to Wollenburg, Bouf-
fard and Personnel Manager Guidinger had returned to the
plant about the time he told the employees they were not
there. According to McKibben, Bouffard and Guidinger
came into his office shortly after Wollenburg alerted him that
the employees had not gone back to work.
At the end of their shift at 3.30 p.m., the first-shift em-
ployees held a short meeting in the plant to discuss their
attempt to get management to talk to them. By a show of
hands, they decided to stop work again at 9:30 a.m. the
following morning to get management to talk to them about
the inadaquacy of the raise. That afternoon Wollenburg dis-
cussed the 2 p.m stoppage with McKibben and gave McKib-
ben the names of those employees whom he felt were the
instigators of the stoppage. He named Asleson, Baugh, Bill-
ings , Bueglar, Zahradik, Don Vagt, and several others.
The second-shift employees held a meeting in the plant
during their lunchbreak on August 16 (6-6.30 p.m.) and
discussed the events that transpired on the first shift. They
again discussed this subject during their coffeebreak at
9-9 10 p.m. Some second-shift employees decided to come in
the next morning at 9:30 and join the first-shift employees in
the stoppage to see if management would talk to them.
8 According to Wollenburg, there are about 45-53 employees in the
pressroom on the first shift All had attended the noon meeting At this 2
p in meeting several employees did not engage in the stoppage
9 Asleson, Baugh, Billings, Bueglar, and Zahradik all participated in the
stoppage and were among the last to return to work
Early the next morning about 8 a.m. one of the pressroom
employees told Wollenburg the employees would stop work
at 9:30 a.m. He immediately reported this to McKibben. At
9 a.m. Wollenburg was called to Bouffard's office. In attend-
ance were Bouffard, Guidinger, McKibben, General Fore-
man Stevens, and Wollenburg. They reviewed the events of
the previous day and McKibben furnished the names of em-
ployees who appeared to be the leaders of the stoppage.
Names mentioned were Asleson, Baugh, Billings, Buegler,
Zahradik, and Don Vagt. Rich and Brakke, second-shift em-
ployees, were also mentioned, based upon a report from se-
cond-shift Assistant Foreman Miller to Wollenburg that they
appeared to be leading the meeting on the second shift the
evening before. Aware that a work stoppage was due to take
place at 9:30, Bouffard instructed Wollenburg that if the
stoppage did occur, he was to instruct the employees once
again to return to work or punch out and leave the plant and
return on Monday morning to the personnel office subject to
disciplinary action.
Upon conclusion of their 10-minute break at 9:30, a sub-
stantial number of the pressroom employees did not start
their machines but instead congregated in the same area as
the day before. About this time about 17-20 employees of the
second shift, including Rich and Brakke, entered the plant
and came to the pressroom and stood around with the first-
shift employees.10 Wollenburg instructed the first-shift em-
ployees to return to work or punch out and return to the
personnel office on Monday morning subject to disciplinary
action. According to Wollenburg, the employees were visibly
upset because management had not spoken to them and they
wanted to know if management representatives were coming
down to talk to them." Wollenburg credibly testified that
several employees returned to work after his warning but the
remainder stayed idly by the pressroom. He telephoned Bouf-
fard who was in his office on the second floor and reported
that the employees had not returned to work and the second-
shift employees had come in.12 About 9:45 a.m. Bouffard,
accompanied by Guidinger and McKibben, came downstairs
and instructed Wollenburg to have six-named employees re-
port to the dispatch office." When they appeared Bouffard
told them they were discharged for being instigators of the
work stoppages and told them to leave the plant quietly. They
left. Until the stoppage of 9:30, Bouffard had not reached any
decision with respect to taking disciplinary action against any
of the employees It was upon advice of his labor relations
consultant'" that he decided to discharge the ringleaders
after the 9.30 stoppage occurred. Of the employees dis-
charged on August 17, the only one who did not participate
10 Having been alerted that second-shift employees would be entering the
plant, Respondent had posted guards at the entrance to the plant early that
morning Pursuant to instructions received from McKibben, the guards told
the second-shift employees who had gathered outside the plant before 9 30
a in they were not authorized to enter the plant and warned them they
would be subject to disciplinary action if they entered Despite the warning,
most of the gathered employees, including Rich and Brakke, entered the
plant
11 The pressroom was on the first floor of the plant The executive offices
were on the second floor
12 Wollenburg reported that the second-shift employees were led by
Brakke and Rich
13 Asleson, Baugh, Billings, Bueglar, Rich, and Zahradik
14 Not to be confused with Respondent's counsel at the hearing
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the 9:30 stoppage was Asleson. He had returned to work
after the break.15
A. The Discharge of Adrian Brakke
a clear mind to really discuss it any more. We said let's
wait and talk to Leonard Miller and Howard Chapman
on everything that has happened on the second shift so
we are" sure we know what we are talking about.
Brakke had been employed by Respondent since January
1966 and at the time of his discharge on August 20, he
worked on the second shift checking parts in the small press
area under Assistant Foreman Miller.
On July 18, the Union had passed out a handbill outside
the plant and had appealed to the employees for more author-
ization cards in order to file a representation petition with the
Board. On this same date, Miller approached Brakke and told
him he knew that Brakke was interested in the Union and
didn't want to hear of a report that Brakke was "soliciting
union cards on company time." He told Brakke, "If I hear
of such a report my work will be cut out for me." Brakke
denied he had been doing it. Miller did not ask Brakke if he
was in fact soliciting union cards nor did he believe Brakke
was then engaging in such activity. 16
Brakke attended the meetings of the second-shift em-
ployees on August 16 during their dinner and coffeebreaks.
On the morning of August 17, he appeared at the plant en-
trance before 9:30 and was made aware of the guard's warn-
ing they would be subject to disciplinary, action if they entered
the plant. He nevertheless entered the plant and was in the
pressroom area during the work stoppage. He apparently
worked that afternoon on the second shift and also on Satur-
day, August 18. On Monday, August 20, he commenced
work at his usual time-3:30 p.m. and at 8 p . m. he was
discharged by Guidinger. Guidinger told him he was dis-
charged for being an instigator in the work stoppage and for
soliciting on company time. Guidinger told him he "didn't
care to entertain any question at that time" and told him to
leave the plant quietly."
The Respondent contends Brakke was discharged for being
one of the ringleaders in the stoppage of August 17 and
because he violated a no-solicitation rule. For some reason
not clearly explained in the record, Brakke was not included
in the group discharged on August 17. Brakke and Rich both
had attended the second-shift meetings on August 16 during
the breaks and both had been identified by Wollenburg to
Bouffard as having entered the plant the morning of August
17. Guidinger explained it as follows:
Later on on August 17th sometime around quarter after
four I was in Mr. Bouffard's office and I do not recall
what exactly I was up there for but we had just made the
comment, you know, maybe we should have, terminated
Mr. Brakke too but after we talked a little more about
it we felt that the state of emotion I was in and I assume
he was in with all the activities that had happened after
the termination of the six employees that we didn't have
IS Rich and Brakke of course were not scheduled to work but had come
into the plant and were with the first -shift employees during the stoppage
16 The above is Miller's credited version of the conversation Miller testi-
fied he also spoke to Rich in the same manner this same date Rich's version
of the conversation is substantially in accord with that of Miller I do not
credit Brakke 's testimony that Miller asked him if he was soliciting union
cards Accordingly , paragraph 6(a) of the Complaint in Case
18-CA-3956-2 is dismissed.
" Guidinger 's credited version
Bouffard's explanation was as follows:
Q. Now, I want to call your attention to August 20.
When did you first hear Adrian Brakke's name brought
to your attention?
A. Well, it was sometime during the day, that John
Guidinger and I were reviewing again the events of
Thursday and Friday.
JUDGE NESS: What date was this?
MR. O'BRIEN: Monday.
THE WITNESS: August 20, Monday.
Q. (By Mr. O'Brien) What do you recall in that re-
view?
A. Well, in reviewing these things and various infor-
mation that had been reported to us and so forth-
Q. (Interrupting) What is that information, do you
recall?
A. Well, basically all the testimony that has been
given up to this point is as the reports from Jerry, reports
from Ron, from Leonard Miller, from Howard Chap-
man, as to who the individuals were that were instigating
this thing with the ring leaders and so forth.
The Respondent contends that one of the reasons Brakke
was discharged was for violating its no-solicitation rule.
The rules maintaining and posted by Respondent include
the following rule:
Rule 15. Soliciting of any kind during working hours
without office consent is forbidden; also, needless or
prolonged private conversations with other employees
on company time.
The second shift starts at 3:45 p.m. Rosemary Strain, a
second-shift employee, testified that on August 16 she had
already punched in and about 3:45 p.m. she was sitting out-
side the office for Assistant Foreman Chapman to assign
work to her. According to Strain, within several minutes after
the 3:45 buzzer had sounded, Brakke approached her and
said, "If I handed you a union card, would you sign it?"
Strain replied, "No."" Strain later reported this conversa-
tion to Assistant Foreman Chapman and asked him if it was
permissible to solicit on company time. Chapman testified he
replied as follows:
I told her I would talk it over with Leonard and Leonard
would advise her as I had only been on the job a few
months and Leonard had been supervisor three and a
half or four years and I knew that he knew more of the
rules than I did. So I consulted with Leonard.
18 Strain said the conversation lasted 3-4 minutes . Her estimate of the
time is obviously exaggerated since she acknowledged the entire conversa-
tion was as related above Although Brakke testified he had not solicited any
employee after July 18 , he was not specifically asked about the above con-
versation with Strain I find the above conversation did take place on August
16.
CRENLO, DIVISION OF GF BUSINESS EQUIPMENT, INC. 877
Assistant Foreman Leonard Miller later that evening told
Chapman it was a violation of the rule . However this "solici-
tation" was not reported to Bouffard and Guidinger until
Monday afternoon , August 20 . At that time , Miller and
Chapman had been called in to relate to Bouffard and Guid-
inger what they knew of Brakke 's participation in the meet-
ings of the second shift on August 16. At this meeting Bouf-
fard and Guidinger were first made aware of Brakke's
conversation with Strain . Guidinger, after consulting with
Respondent 's labor relations consultant later that afternoon,
together with Bouffard decided to discharge Brakke for being
an instigator of the work stoppage and for soliciting on com-
pany time.
B. The Refusal To Recall Asleson
Asleson , it will be remembered , was included in the group
discharge on August 17. He was a first-shift employee and
was in attendance at the noon meeting with Wollenburg on
August 16 and expressed his dissatisfaction with the 25-cent
pay increase . He participated in the 2 p .m. work stoppage on
August 16. And later that afternoon , near quitting time, he
said to Wollenburg , "Well today it's the pressroom, maybe
tomorrow the welders will be with us." Asleson did not at-
tend the first-shift 3 :30 p.m . meeting on August 16. Nor did
he participate in the work stoppage on August 17. He re-
turned to work at 9:30 when the break period ended. At the
time he was discharged on August 17, Bouffard assumed, but
incorrectly ,' that Saleson was part of the group engaged in the
work stoppage on August 17. Bouffard testified that after
Asleson was discharged , he first discovered that Asleson had
not participated in the 9:30 stoppage. Bouffard 's pertinent
testimony in this regard follows:
JUDGE NESS: But he still remained discharged?
THE WITNESS : Yes, sir, he did because on Monday we
heard that these six fellows were going up to the Na-
tional Labor Relations Board to present their case and
from that point on we didn 't think any consideration of
what we should be doing with the individuals, it was out
of our hands . It was going to become a matter of the
NLRB action.
JUDGE NESS: When did you hear about this charge
with the Labor Board?
THE WITNESS : Directly from the Labor Board.
JUDGE NESS: No, when did you first hear about it, that
it was going to be filed or was filed?
THE WITNESS : Monday , Monday the 20th.
JUDGE NESS: How did you hear about it on Monday?
THE WITNESS : I think John Guidinger reported that
that somebody had told him
JUDGE NESS: Was it only because you heard the charge
was filed or being filed that you didn 't take him back?
THE WITNESS : Well, no , not just because of that. We
felt-you 're talking about Archie as an individual?
JUDGE NESS: Yes.
THE WITNESS : Under advice of counsel , our labor
counsel, he advised us to just sit tight on this until he saw
what developed.
Upon completion of his testimony I granted , over Respon-
dent 's objection , the General Counsel 's motion to amend the
complaint to include the Section 8(a)(4) allegation.
C. Analysis
The discharges involved herein grew out of two in-plant
work stoppages engaged in by employees on successive
days-August 16 and 17. The employees engaged in the stop-
pages in order to discuss the wage increase just granted by
Respondent which the employees felt was inadequate and
insufficient to cope with the cost -of-living spiral . The alleged
discriminatees fall into several categories.
1. Baugh , Billings , Bueglar , and Zahradik
They were first-shift employees and all engaged in both
work stoppages during the periods when they were scheduled
to be working . They were discharged for engaging in both
work stoppages . If either work stoppage was unprotected,
then their discharges were not violative of the Act.
2. Asleson
He was also a first-shift employee who engaged in the first
work stoppage but did not participate in the second. He was
discharged under Respondent 's mistaken belief at the time of
the discharge that he was participating in the second stop-
page. For reasons explained below , if the first stoppage was
protected but not the second , Asleson 's discharge violated the
Act.
3. Rich
Rich was a second -shift employee and did not participate
in the first work stoppage . He did participate in the second
stoppage under the following circumstances . Although not
scheduled to be working at the time of the stoppage, he
entered the plant in violation of a company rule prohibiting
unauthorized entry and in the face of being warned by a
guard that if he entered it would be unauthorized and would
subject him to disciplinary action . Despite the existence of the
rule and the guard 's admonition , he entered the plant to make
common cause with the first -shift employees who were stop-
ping work in order to seek an audience with management
representatives for the purpose of voicing their protest over
the amount of the wage increase . Assuming , arguendo, the
second work stoppage was protected as far as the first-shift
employees were concerned , does this protection flow to Rich,
a second-shift employee who entered the plant under the
circumstances described above.
4. Brakke
Brakke too was a second-shift employee who engaged in
the second work stoppage under circumstances similar to
Rich. He was not included in group discharges of August 17.
When management representatives met on August 20 to re-
view his activities, they were informed Brakke had engaged
in union solicitation on company time . He was accordingly
discharged for participating in the August 17 stoppage and
for engaging in union solicitation on company time . If either
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the reasons for discharge was unlawful, then his discharge
was violative of the Act.
We turn now to a brief review of the work stoppages. The
employees had met during the noon hour with pressroom
foreman, Wollenburg. They expressed their dissatisfaction
with the amount of the wage increase and asked for a meeting
with management. Wollenburg advised them he would pre-
sent their complaints to management and get back to them.
He did not designate any time. The employees did not
through any organized method decide to stop work at 2 p.m
Rather it appeared to be more or less by word of mouth. Then
at 2 p.m. most of the employees in the pressroom gathered
in the same area as at the noon meeting hopefully to
meet with management, and to voice their common
grievance-the amount of the wage increase . Within minutes
of the stoppage, Wollenburg directed them to return to work
or leave the plant. Some of the employees returned to work
while others demanded or pleaded for a meeting with man-
agement . No management representative appeared on the
scene and the employees gradually drifted back to work.
Within the hour the stoppage was over The employees were
not told that management would not meet with them. On the
contrary Wollenburg indicated that management would meet
at a later time. Having failed in their attempt to get manage-
ment to discuss their grievance at the 2 p in. stoppage, the
first-shift employees decided to engage in another stoppage
the following day at the end of their morning break at 9:30.
A number of employees on the second shift, including Rich
and Brakke, met during their break periods and decided to
appear on the scene the following morning and support the
first-shift employees. Once again the employees were seeking
to get management to talk to them. Once again when the
stoppage started at 9:30, Wollenburg delivered the warning
to the first-shift employees to return to work or leave the
plant and subject themselves to disciplinary action. The em-
ployees were not told management would not meet with
them. During this period the management representatives
were on the second floor in the executive offices. No em-
ployee was prevented from working. Indeed some pressroom
employees, including Asleson, did not engage in the stoppage
at all but, instead, resumed working when the break was over.
Some others returned to work immediately after Wollen-
burg's warning . When management was informed that em-
ployees were continuing the stoppage despite Wollenburg's
warning , the decision was made to discharge those whom
Respondent believed to be the ringleaders. Whether or not
those selected were the ringleaders is immaterial For if the
activity was unprotected the employer was free to pick and
choose for discharge any of the participants.
First to be considered is the legality of the initial work
stoppage at 2 p.m. on August 16, I find that this in-plant work
stoppage was a protected concerted activity. The stoppage
here was not of the type which FansteeP9 and related cases
have held to be beyond the ambit of protected activity. The
employees here did not attempt to take over the plant, did not
seek to work on their own terms, did not engage in any
violence or prevent other employees from working. Nor were
the employees represented by any labor organization with an
established grievance procedure.20
In N.L.R.B. v. Pepsi-Cola Bottling Company of Miami,
Inc., 449 F 2d 824, 829-830 (C.A. 5, 1971), enfg. 186 NLRB
477 (1970), cert. denied 407 U.S. 910 (1972), the court agreed
with the Board that the discharge of employees who engaged
in a sitdown stoppage in the plant in protest over the dis-
charge of six employees was unlawful. In finding the dis-
charges to be violative of the Act, the court stated:
The strikers were not shown to have interfered with
the work performance of non-strikers, and their actions
were unaccompanied by violence or the threat of vio-
lence. The Company would have us hold that any sit-
down activity necessarily carries with it a threat of vio-
lence sufficient to clothe the employer with the right to
discharge those responsible. We reject any such notion.
Without more than the mere act of sitting down during
a labor dispute, there is no more incitement or probabil-
ity of violence than is necessarily incidental to any other
act.
The Company contends that its employees became
illegal trespassers subsequent to management's order to
leave the plant, and their activity can thus not be con-
doned or protected by this Court. We do not agree. In
all similar work stoppage cases previously discussed, the
employer had ordered his employees to leave or return
to work. We do not, therefore, deem this factor to be
dispositive of the instant case. An employer cannot con-
vert a protected in-plant work stoppage into an un-
protected trespass by the simple expedient of ordering
his employees from the plant where, as here, such an
order serves no immediate employer interest and unduly
restricts the employers right to present grievances to
their employer. The employer interest in maintaining an
established grievance procedure and the absence of re-
striction on employees in the face of such procedures,
such as that found in Cone Mills, is not present in the
instant case.
In N.L.R.B. v. Kennametal, Inc., 182 F 2d 817, 819 (C.A.
3, 1950), enfg. 80 NLRB 1481 (1948); the court upheld the
Board's finding of unlawful discharges of the ringleaders of
the group of approximately 100 employees who had stopped
work to voice a protest to management and refused manage-
ment 's order to return to work. The court stated:
What occurred in this case was certainly a concerted
activity for the purpose of collective bargaining, the kind
of activity which is expressly protected by Section 7 of
the Act. That the employees suddenly dropped their
tools and insisted upon presenting their grievances dur-
ing working hours does not detract from the lawfulness
of their conduct. Certainly the statute would have pro-
tected them against interference or coercion if instead of
insisting upon immediate discussion of their demands
they had then and there left the plant and formed a
picket line outside. In fact, what the workmen did was
more reasonable and less productive of loss to all con-
cerned than an outright strike.
The language of the Act does not require and its pur-
poses would not be served by holding that dissatisfied
19 N.L.R.B. v Fansteel Metallurgical Corporation, 306 U S 240 (1939) 20 Cf Con Mills Corp v N.L R B., 413 F 2d 445 (C A 4, 1969)
CRENLO , DIVISION OF GF BUSINESS EQUIPMENT , INC 879
workmen may receive its protection only if they exert the
maximum economic pressure and call a strike.
And in The Masonic and Eastern Star Home of the District
of Columbia, 206 NLRB 127 ( 1973), the Board held that in
the absence of an established grievance procedure , the con-
duct of a group of employees in stopping work and concert-
edly presenting a grievance concerning terms and conditions
of employment is within the protection of the Act.
In light of the applicable precedents ," the conduct of the
employees in stopping work on August 16 to concertedly
voice their dissatisfaction with the amount of the pay increase
given to them is within the protection of the Act.
The legality of the in -plant stoppage on August 17 presents
a more difficult question.
In Valley City Furniture Company, 110 NLRB 1589,
1594-95 ( 1954), the union , in order to bring economic pres-
sure upon the employer in bargaining , had announced to the
employer that the employees would not work overtime until
the company bargained in good faith. A number of employees
walked off the job at the end of the regular shift . The next day
the employer refused to permit those employees to begin
work until they submitted to individual interviews for the
purpose of determining their intentions on working overtime.
The employees refused to return under those conditions and
they were replaced . The Board stated:
We find that the partial strike called by the Union
from its very inception was the sort of activity which,
although concerted , is not , as against the action taken by
the Respondent , entitled to the protection of the Act.
The vice in such a strike derives from two sources . First,
the Union sought to bring about a condition that would
be neither strike nor work . And, second , in doing so, the
Union in effect was attempting to dictate the terms of
conditions of employment.
In John S. Swift Company, Inc., 124 NLRB 394 (1959), the
Board considered the legality of disciplinary action against
employees who refused to work a mandatory schedule of
overtime hours . The Board found no violation , holding that
the employees ' refusal to work overtime constituted an at-
tempt to work on terms of their own choosing.
In Honolulu Rapid Transit Company , 110 NLRB 1806
(1954), the Board found no violation of the Act where the
Employer suspended employees who, at the direction of the
Union, refused to work on four consecutive weekends while
continuing to work on weekdays . The action taken by the
employees was for the purpose of bringing economic pressure
upon the employer during bargaining negotiations.
What emerges from this line of Board cases is that stop-
pages are unprotected where they are recurrent in nature or
where the participants have threatened their recurrence. In
his brief, Respondent 's counsel points to McKibben's tes-
timony that there was a drop in production for August 16 in
the pressroom and a more serious drop in production on
August 17 , affecting the entire plant . This is uncontroverted.
Unquestionably , the stoppage on August 16 for almost an
21 See also NL.R B. v J.I Case, 198 F 2d 919 (C A 8, 1953), Modern
Motors, Inc v NL.R B, 198 F 2d 925 (C A 8, 1952), Serv-Air, Inc., 401
F.2d 363 (C.A 10, 1963), Hanes Hosiery, 413 F 2d 457 (C A 4, 1969)
hour caused a drop in production for the day . But it can
hardly be said the more serious drop in production on August
17 was attributable to the stoppage that morning which had
lasted for some 15 minutes when the six employees , five of
whom worked on that shift , were discharged . It was after the
discharges that production was really affected . As Wollen-
burg testified , it was after the discharges that "all hell broke
loose ." He testified that by 11 a .m., approximately 20 em-
ployees remained at work . The other employees , for one rea-
son or another , apparently left the plant after the discharges.
In the instant case , it cannot be said there was any plan to
engage in a series of quickie work stoppages to force the
Respondent to meet with the employees . True the employees
decided on August 16 to engage in a work stoppage again on
the morning of August 17. But the employees were not told
that Respondent would not meet with them. In fact Wollen-
burg held out the possibility that someone would talk to
them. The employees were not asked whether they intended
to continue to engage in work stoppages unless and until they
were granted an audience . Nor does the record establish that
the employees had such intentions . There is no magic number
to reach before one can say they are now of a recurring
nature . Two work stoppages on 2 successive days does not
disclose a pattern of recurring or sporadic stoppages which
would deprive the employees of their Section 7 rights. Such
finding would do violence to the intent of the Act . Under the
circumstances herein described , particularly where the Re-
spondent had not made known to the employees that it would
refuse to meet with them and where the stoppages were
peacefully conducted , I find that the work stoppage of Au-
gust 17 , as well as the preceding on August 16, was protected
concerted activity.
Accordingly the discharge of Baugh , Billings, Bueglar, and
Zahradik because they engaged in the two stoppages were in
violation of Section 8(a)(1) of the Act.
In the case of Asleson , it will be remembered that he did
not participate in the August 17 stoppage . The Respondent
mistakenly believed he was one of the participants when in
fact he was working . It was because of its mistaken belief he
engaged in both stoppages that he was discharged . Since I
have found that the stoppages were both protected activities,
it follows that his discharge was violative of Section 8(a)(1)
of the Act . Even if the August 17 stoppage was found to be
unprotected , his discharge would nevertheless be unlawful.
His participation in the stoppage on August 16 was protected.
The mistaken belief that he had also participated in un-
protected activities , i.e., assuming arguendo the August 17
stoppage to be unprotected , would provide no defense where
the only activity he did in fact engage in was protected.22 I
find it unnecessary to make any finding whether Bouffard's
decision not to reinstate Asleson even after he discovered
Asleson had not engaged in the August 17 stoppage violated
Section 8(a)(4) of the Act where the decision was predicated
upon his consultant's advice to let the matter rest with the
Board . Even were this to be considered violative of the Act,
it would in no way affect Asleson 's eligibility for reinstate-
ment which I am recommendint infra.
Rich was discharged for his participation in the August 17
stoppage. Despite the rule against unauthorized entry on
22 N.L.R.B. v Burnup & Sims, 379 U S 21 (1964).
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company premises23 and the guard's admonition against
coming into the plant, he entered outside his shift hours and
participated in the stoppage. Of course if the stoppage were
to be considered unprotected, this would be dispositive of the
issue concerning his discharge. But since I have found this
stoppage to be a protected activity, it becomes necessary to
determine whether such protection flows to Rich. I do not
believe that Rich's participation in the August 17 stoppage
constituted a protected activity despite his acting in concert
with other employees. For there is no evidence that the rule
against unauthorized entry had been discriminatonly applied
or enforced. Unlike the first-shift employees he was not au-
thorized to be in the plant when the stoppage occurred. In-
deed he was warned before he entered that he was not permit-
ted in the plant. Accordingly I find that Rich's discharge was
not violative of the Act.
Brakke was discharged on August 20 for two
reasons-participation in the August 17 stoppage and for
soliciting during working hours. If one of these two motivat-
ing reasons are deemed to be unlawful, then the discharge
itself was unlawful.24 Like Rich, Brakke was a second-shift
employee who participated in the August 17 stoppage. As in
the case of Rich, I find that Brakke's participation in the
August 17 stoppage was not protected. We must now exam-
ine the other motivating reason for the discharge-the union
solicitation dunng working hours. The General Counsel con-
tends the no-solicitation rule itself is invalid, and that even if
Brakke violated the rule, his discharge was unlawful. Re-
spondent, on the other hand, argues the validity of the rule
and contends that Brakke's discharge, in part for wilful viola-
tion of the rule, did not violate the Act.
The rule forbade soliciting of any kind during working
hours without managment approval. I find this rule presump-
tively invalid because of its vagueness and ambiguity. It does
not with sufficient clarity advise the employees when they
may engage in union solicitation. Such rule may be inter-
preted to prohibit union solicitation during working hours,
even during nonworking time, periods when the employees
engaged in such activity are not expected to actually be work-
ing; e.g., breaktime.25
That the rule in the instant case is subject to different
interpretations is graphically borne out by the testimony of
Plant Manager McKibben and Assistant Foreman Leonard
Miller.
McKibben, plant manager since January 1970, testified as
follows:
Q. (By Ms. Hammerstrom) To your understanding
does the term working hours in the rule include a com-
pany 's lunch break , I'm sorry , I mean an employee's
lunch break . May an employee solicit during his lunch
break without breaking the rule?
A. If it's not a paid lunch break.
23 Co Rule No 3 (G C. Exh 3)
24 S .A Healy Co v N.LR.B, 435 F 2d 314 (C A 10, 1970), Betts Baking
Co. v N.LR.B., 380 F 2d 199 (C A 10, 1967), N.LR.B v Whitin Machine
Works, 204 F 2d 883 (C.A 1, 1953)
25 Campbell Soup Co., 159 NLRB 74 (1966), enfd in relevant part 380
F 2d 372 (C A 5, 1967); Farah Manufacturing Co., 187 NLRB 601 (1970),
enfd 450 F 2d 942 (C A. 5, 1971), G.C. Murphy, 171 NLRB 370 (19 )
Q. May an employee solicit during his coffee break
without breaking the rule?
A. No, he may not, those are paid.
Q. So the rule is as long as you are on the time clock
and being paid you cannot solicit?
A. That is correct.
Miller, employed by Respondent since 1960 and assistant
foreman since October 1972, testified as follows:
Q. (By Ms. Hammerstrom) Mr. Miller, I would like
to show you General Counsel's Exhibit No. 3 and direct
your attention to Rule No. 15 on General Counsel's
Exhibit No. 3. Would you read that to yourself, please?
Has anyone like a foreman or a management official
explained to you the meaning of the term working hours
used in this rule?
A. Working hours, truthfully, at the time that this all
took place I was under impression that working hours
meant the time that you were actually working, your
lunch break and coffee break excluded.
Q. How were you under that impression?
A. Well, I believed that this was the time the company
was paying a person to work. Therefore, it was the com-
pany's time.
* s s * s
Q. O.K. How, how do you interpret this rule now?
A. Well, I had the rule explained to me after these
events had taken place that by company time it means
the time that you are punched on your gate card, the
time the company is paying you for which does
not-well, the company time also includes break period,
the coffee break period.
Q. Who explained this to you?
A. Golly, I couldn't say right offhand.
Q. Was it someone working in the company?
A. Yes, it was. It was someone from management
higher than myself. I don't remember right offhand who
it was.
In Daylin, Inc.,` the Board had found a no-solicitation
rule invalid as being overly broad in its prohibitions. In find-
ing that the discharge of two employees who violated the rule
to be unlawful, the Board stated:
But where a no-solicitation rule goes beyond these
limits, as the present one does, it is an unlawful infringe-
ment upon the employees' freedom to solicit their fellow
employees for (or against) union representation. The
rule in such case can provide no justification for the
discharge of an employee who violated it. Therefore, if
an employee is discharged for soliciting in violation of an
unlawful rule, the discharge also is unlawful unless the
employer can establish that the solicitation interfered
with the employees' own work or that of other em-
ployees, and that this rather than violation of the rule
was the reason for the discharge. As we noted above, no
such interference is shown here. Thus the employee has
been discharged for engaging in an activity protected by
the Act, and the violation is plain . Enforcement of an
26 198 NLRB No 40 (1972) See also The JL Hudson Company, 198
NLRB No 19 (1972)
CRENLO, DIVISION OF GF BUSINESS EQUIPMENT, INC.
unlawful rule in this matter is, of course, a separate
further interference with employee rights.
The entire conversation between Brakke and Strain took
up less than 1 minute-a short question by Brakke and a flat
"No" from Strain. Nothing further was said . The conversa-
tion took place only shortly after the buzzer rang. Strain was
not working; she was awaiting an assignemnt from her super-
visor. The only information conveyed to management was
that Brakke had solicited on company time. No attempt was
made to ascertain the circumstances under which the solicita-
tion took place-where the employees were, the time in-
volved, or whether there was any disruption of work. Brakke
was not even asked whether the solicitation had even
occurred." Under these circumstances, it cannot be said
that Brakke had been neglecting his work or had interfered
with the work of Strain. Respondent points out that Brakke
had been "warned" against soliciting in July. But I do not
view this as a warning. Brakke was merely alerted to the
existence of the rule and told he should not violate it. He was
not accused of violating the rule nor had the Respondent
believed him to be violating the rule.
I therefore find and conclude that Respondent' s no-solici-
tation rule was invalid and by discharging Brakke for violat-
ing the rule, under the circumstances described herein, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of Respondent
27 That Respondent would have reached differently if the solicitation was
not related to the Union is borne out of Personnel Manager Guidinger's
testimony He testified as follows
Q Have you had occasion to enforce that rule with respect to em-
ployees soliciting on company time9
A Yes, I have
Q Could you explain?
A I don't know the exact period of time, I would estimate it maybe
two years ago, a department manager, Grant Emerson, approached me
that he had an employee in his department who was receiving clerk
Dewayne Davidson who was selling shoes during company time.
Q What did you tell the foreman to do?
A I told the foreman to go back down and warn Mr Davidson that
he was violating a no solicitation rule
Q 0 K , have you ever given an employee permission to solicit for
any reason on company time, Mr Guildmger9
A Not that I recall
Q Would you explain what the company policy and practice is on
disciplining employees, Mr Guidmger7
A We ask that a supervisor, if there is a problem with an employee,
depending on the seriousness of the situtation, to give him a verbally,
caution him to what he is doing wrong Also, then, they would send me
a copy of the talk they had had with the employees If it becomes more
serious on that same offense we ask that they are given a written
warning where they, the employee himself, would also sign the notice
that the foreman has given them in writing so that we know that they
also are aware of their problem If there is a continuation of the same
situation, normally we would probably suspend the individual two to
three or four days subject to possible termination
881
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging on August 17, 1973, and thereafter refus-
ing to reinstate Archie Asleson, Dennis Baugh, Marvin Bill-
ings, Paul W. Bueglar, and Jim Zahradik for engaging in
protected concerted activities, the Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discharging Adrian I. Brakke on August 20, 1973,
and thereafter refusing to reinstate him for engaging in activi-
ties on behalf of the Union, the Respondent has thereby
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
5. By maintaining and enforcing a rule prohibiting em-
ployees from soliciting in connection with union activities
during their nonworking time, Respondent has interfered
with, restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act and thereby
committed unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
6. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except for the foregoing, Respondent has committed no
unfair labor practices under the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that the Respondent unlawfully dis-
charged the above-named employees, I shall recommend that
it be ordered to offer them full reinstatement, with backpay
computed on a quarterly basis, plus interest at 6 percent per
annum , as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1960), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), from the date of the discharge to the date
reinstatement is offered.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER28
Respondent, Crenlo, Division of GF Business Equipment,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in General Drivers, Helpers,
Warehousemen and Inside Employees Local No. 160, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other union, by dis-
criminatorily discharging its employees or by discriminating
in any other manner with respect to their hire or tenure of
employment or any term of condition of employment.
(b) Interfering with, restraining, or coercing employees by
discharging or in any other manner disciplining employees
for striking or engaging otherwise in protected concerted
activities.
(c) Maintaining or enforcing any directive, regulation, or
rule which in terms of effect prohibits or prevents any of its
employees, during times when they are not required to be
working, from orally soliciting any other employees and/or
obtaining the signatures of any other employees on union
authorization cards or petitions on behalf of any labor organi-
zation during any times when such other employees are not
required to be working.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer to Archie Asleson, Dennis Baugh, Marvin Bill-
ings, Adrian I. Brakke, Paul W. Bueglar, and Jim Zahradik,
immediate and full reinstatement to their former jobs or if
their former jobs no longer exist, to substantially equivalent
positions, without loss of seniority or other rights and pnvi-
lages, and make them whole for any loss of earnings they may
have suffered in the manner set forth in "The Remedy" sec-
tion of this Decision.
(b) Forthwith rescind its rules to the extent that it prohibits
its employees from engaging in the activities described in 1(c)
immediately above.
(c) Post at its two plants in Rochester, Minnesota, copies
of the attached notice marked "Appendix."29 Copies of the
28 In the event no exceptions are filed as provided in Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
29 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgemet of the United States Court of Appeals Enforcing an Order of the
National Labor relations Board "
notice, on forms provided by the Regional Director for Re-
gion 18, shall, after being duly signed-by Respondent's' au-
thorized representative, be posted by the Respondent im-
mediately upon receipt, thereof, and be, maintained for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondnet to insure
that the notices are.not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20 days
from the date of the Order, what steps the Respondent has
taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against any employee to discourage activities in support
of General Drivers, Helpers, Warehousemen, and Inside
Employees Local No. 160, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other union.
WE WILL NOT interfere with, restrain, or coerce em-
ployees by discharging or in any other manner discipline
employees because they have engaged in protected con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL NOT maintain or apply any rule which pro-
hibits or prevents any employee from orally soliciting
any other employees on our premises and/or obtaining
the signatures of employees on union authorization
cards or on petitions on behalf of any labor organization,
during time neither is working nor required to be work-
ing. .
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL offer to the following named employees im-
mediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority or other rights or privileges, and will make each
of them whole for any loss of earnings they may have
suffered.
Archie Asleson Adrian I. Brakke
Dennis Baugh ' Paul W. Bueglar
Marvin Billings Jim Zahradik
CRENLO, DIVISION OF BUSINESS
EQUIPMENT, INC