Greentree Electronics Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1969

176 N.L.R.B. 919 (N.L.R.B. 1969)

GREENTREE ELECTRONICS CORP. 919
Greentree Electronics Corporation and Industrial
Union of Marine & Shipbuilding Workers of
America, AFL-CIO. Case 21-CA-8176
June 23, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BRO^h N AND ZAGORIA
On January 27, 1969, Trial Examiner Henry S.
Salim issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed
cross-exceptions and a brief in support of the Trial
Examiner's Decision, in opposition to the exceptions
of General Counsel, and in support of Respondent's
cross-exceptions.
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.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner with the following modifications:
The Trial Examiner found and we agree that
Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining a rule barring
solicitation on company property at any time
without company . permission. However, we find
merit in the General Counsel's exceptions to the
Trial Examiner's failure to find that employees
Matlock and Murdock were discharged in violation
of Section 8(a)(3) because of their union activities in
contravention of Respondent's rule.
In January 1968, the Company posted on its
bulletin board a set of rules including the following:
"Soliciting for an outside organization on company
property will not be permitted without company
'The Respondent has excepted to certain credibility findings made by the
Trial Examiner . It is the Board 's established policy not to overrule a Trial
Examiner ' s resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products, Inc.. 91 NLRB 544, enfd.
188 F.2d 362 (C.A. 3). We find no such basis for disturbing the Trial
Examiner's credibility findings in this case.
permission."2 There was no evidence that this rule
was ever enforced as to nonworking time, but in
July 1968 two employees were discharged for
passing out union cards on company time.
Murdock, the first employee to be discharged,
was seen by a supervisor handing some cards to
another employee while the latter was at his
machine. The employees saw the supervisor and
stopped what they were doing. The supervisor
reported the incident to the personnel director, who
sent for Murdock and discharged him for violation
of a "company policy" against working time
solicitations. During the discharge interview
Murdock was asked who had given him the cards he
had. Murdock stated that it was employee Matlock,
and on further questioning, that they were given to
him during working hours. Matlock, an employee of
4 years, was summoned and was also summarily
discharged for violating the same "company policy."
In recommending dismissal of the 8(a)(3)
allegations , the Trial Examiner found that because
the alleged discriminatees engaged in worktime
solicitation, they were terminated for just cause. He
further concluded that there was no causal
connection between the unlawful rule and the
employee conduct leading to the discharges. We
disagree.
The Trial Examiner's rationale presumes that,
despite the absence of a valid rule, employers may
terminate employee organizers who engage in
work-time union solicitation even though the
activities of the employees entail no interference
with production or plant discipline. In our opinion,
the question of whether worktime solicitation is
protected or unprotected activity cannot be
determined on an absolute basis. On the contrary,
the result must turn on the delicate balance that
must be maintained between the employee's right to
engage in organizational activity and the employer's
responsibility for the maintenance of rules necessary
to efficient operation of the plant. This balance must
be administered in a fashion ensuring that reprisals
are not taken against the principal in-plant
organizers where legitimate interests of employers
are not involved.
A discharge based on worktime distribution of
cards in the absence of a valid rule is suggestive that
the employer was reacting to the protected aspect of
the employee's conduct, rather than considerations
of plant efficiency. Accordingly, in Selwyn Shoe
Manufacturing Corporation.' it was held that in the
absence of such a rule it was not a sufficient defense
that the dischargee's activities (in that case,
antiunion activities) "impinged on working time."
The Board said:
There must also be a showing that the discharge
flowed from [the employee's] abdication of her
'We adopt the Trial Examiner ' s finding that the promulgation of this
rule violated Sec. 8(axl).
'172 NLRB No 81.
176 NLRB No. 126
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working duties rather than from the fact that she
engaged in solicitation against the Union.'
The evidence in the present case indicates that the
concern of the Respondent was the union
solicitation, not the interference with production or
maintenance of plant discipline. In the first place,
the rule in existence at the time of the discharges
restricted solicitations without regard to whether
they were conducted on working time or in working
areas . Therefore, the rule itself barred
organizational activity which in no sense could
interfere with plant operations. Nor do the
conditions under which Respondent discharged the
employees reveal a concern for efficiency of
operations. Thus, as to Murdock, although the Trial
Examiner states " [i]t is not unreasonable to infer,
and it is so found, that Murdock interfered with
[another employee's] work,"' the evidence reveals no
more than that Murdock gave union cards to
another employee and was seen doing so by a
supervisor. In the case of Matlock there was only
the fact that she gave some cards to Murdock
during working hours. In neither case did the
Respondent inquire into whether or not there was
any actual or threatened disruption of production,
and, in fact, both employees were expressly
discharged for soliciting during working time, with
no mention or hint at their discharge interviews that
they were interfering with production or creating
disciplinary problems. In these circumstances, we
find that Respondent discharged Murdock and
Matlock not in the interests of maintaining
production but rather, in reprisal for their union
activities.' Accordingly, we find that Respondent
thereby violated Section 8(a)(3) and (1) of the Act.'
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth above
occurring in connection with its operations as
described in the section of the Trial Examiner's
Decision entitled "Jurisdictional Findings," 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. Greentree Electronics Corporation at all
material times has been and is an employer engaged
in commerce within the meaning of Section 2(2) of
the Act.
2. By discharging Antoinette Matlock and Jerry
Murdock because of their union activities, the
Respondent discriminated against Matlock and
Murdock in their hire and tenure of employment
and has discouraged membership in a labor
organization, and has thereby engaged in unfair
labor practices in violation of Section 8(a)(3) of the
Act.
3. By the foregoing conduct, and by promulgating
and maintaining a rule restricting solicitations for a
union during nonworking time, the Respondent has
interfered with, restrained, and coerced employees in
the exercise of their Section 7 rights and has thereby
engaged in unfair labor practices in violation of
Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices in addition to those found by the
Trial Examiner, we shall order Respondent to cease
and desist therefrom and to take the additional
affirmative action necessary to effectuate the
purposes of the Act.
We have found, contrary to the Trial Examiner,
that Respondent discriminatorily discharged
Antoinette Matlock and Jerry Murdock. We shall
therefore order Respondent to offer immediate and
full reinstatement to Antoinette Matlock and Jerry
Murdock and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination by payment to each of them of a sum
of money equal to the amount each normally would
have earned as wages from the date of discharge to
the date of offer of full reinstatement, computed in
accordance with the formulas set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
'td. at p.7.
'Trial Examiner 's Decision.
'Although unnecessary to this conclusion , it is noted that uncontradicted
testimony shows that the Respondent ' s president , shortly after the
termination of Murdock and Matlock , and in the context of an antiunion
speech , announced to employees that the discriminatees were terminated
because of their union activities on company time.
'Cf. LTV Electrosystems, Inc, 169 NLRB No. 64, enfd. in pertinent
part 408 F .2d 1122 (C.A. 4); Central Power d Light Company, 173
NLRB No 50; New Orleans Furniture Manufacturing Co, 129 NLRB
244, 251.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Greentree Electronics Corporation, Costa Mesa,
California, its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Promulgating and maintaining any rule
prohibiting employees from soliciting for a union
during nonworking time.
GREENTREE ELECTRONICS CORP.
(b) Discouraging membership in or activities on
behalf of Industrial Union of Marine &
Shipbuilding Workers of America, AFL-CIO, or
any other labor organization, by discharging
employees or by discriminating in any other manner
in regard to their hire, tenure of employment, or
any term or condition of employment.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed under Section 7 of the
National Labor Relations Act, as amended.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to reinstate Antoinette Matlock and
Jerry Murdock to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings suffered by
"reason of the discrimination against them, in the
manner described in the section of this Decision
entitled "The Remedy," and notify them, if they are
presently serving in the Armed Forces of the United
States of their rights to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(b) Preserve and, upon request, make available to
the National Labor Relations Board and its agents,
for examination and copying, all payroll records,
social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay due
hereunder.
(c) Post at its plant in Costa Mesa, California,
copies of the attached notice marked "Appendix."8
Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly
signed by a representative of the Respondent, shall
be posted by it immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the said Regional Director, in writing,
within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith.
MEMBER ZAGORIA , dissenting in part:
Like my colleagues I would affirm the Trial
Examiner's finding that the Respondent violated
Section 8(a)(1) by promulgating a rule that
"Soliciting for an outside organization on company
property will not be permitted without company
permission," because the rule interfered with its
'In the event that this 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."
921
employees' right to engage in union solicitation on
company property on nonworking time. Unlike
them, however, I would also affirm the Trial
Examiner's dismissal of the allegation that the
discharges of Matlock and Murdock were violative
of Section 8(a)(3).
As my colleagues concisely put it, these
employees "were expressly discharged for soliciting
[for the Union] during working time." Furthermore,
the evidence, in my view, fails to establish that the
reason given was a pretext. Thus, there is no
showing that the Respondent is hostile to unionism;
nor does it appear that the Respondent was
motivated by antiunionism, or even had unionism in
mind, when it posted the rule. The only unfair labor
practice which it committed was its posting of that
portion of the rule which, by prohibiting union
solicitation on nonworking time, inherently
interfered with Section 7 rights; however, as my
colleagues agree, the unlawful portion of the rule
was never enforced.
Insofar as the rule prohibited union solicitation on
working time, it was lawful on its face, and there is
no evidence that it was disparately applied. These
employees clearly were guilty of transgressing the
lawful portion of the rule. I would therefore find
that they were discharged for cause, and that the
Respondent was under no obligation to establish
that the transgressors interfered with production or
created disciplinary problems.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT discourage membership in or activities
on behalf of Industrial Union of Marine &
Shipbuilding Workers of America, AFL-CIO, or any
other union, by discharging employees or otherwise
discriminating against them in regard to any working
conditions.
WE WILL NOT promulgate or maintain a
no-solicitation rule prohibiting solicitation on behalf of
a union during nonworking time.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed under Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Antoinette Matlock and Jerry
Murdock their former jobs and pay each of them for
wages he lost as a result of his discharge, with 6 percent
interest . If they should currently be serving in the
Armed Forces of the United States we will notify them
of their rights to full reinstatement after discharge from
the Armed Forces upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended.
Our employees are free to become or remain , or refrain
from becoming or remaining members of any union.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GREENTREE ELECTRONICS
CORPORATION
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board 's Regional Office, Eastern
Columbia Building , 849 South Broadway, Los Angeles,
California 90014, Telephone 213-688-5254.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner: This proceeding,
under Section 10(b) of the National Labor Relations Act,
was heard in Los Angeles, California, on November 14
and 15, 1968, pursuant to due notice. The complaint,
which was issued on September 16, 1968, on a charge
dated July 15, and amended on September 12, alleged that
Respondent engaged in unfair labor practices proscribed
by Section 8(aXI) of the Act by interrogating employees,
creating an impression of surveillance and enforcing a
no-solicitation rule for a discriminatory purpose. In
addition , the complaint alleges two employees were
discharged because of their union activities in violation of
Section 8(a)(3) of the Act. Respondent answered denying
the said allegations . Briefs were filed by the parties on
December 5, 1968.
Upon the entire record in the case and from
observation of the demeanor of the witnesses while
testifying, there are hereby made the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, a corporation,' employing approximately
65, has its principal place of business in Costa Mesa,
California, where it is engaged in the manufacture and
sale of magnetic tape. It sells and ships annually to
extrastate points products valued in excess of $50,000, and
is, therefore , engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Organizational activity involving a union, other than
the Charging Union, was initiated in June 1967. It
culminated on September 1, 1967, with that union not
receiving a sufficient number of votes in a
Board-conducted election in order to qualify as
collective-bargaining representative of Respondent's
'The complaint fails to reveal in which State the Respondent Company
was incorporated
employees. The Company posted on its bulletin board,
located next to the employees' timeclock, a notice dated
January 18, 1968, which reads in pertinent part: "An
infraction of any of the following rules will be considered
grounds for disciplinary action or dismissal : . . . Soliciting
for an outside organization on company property will not
be permitted without company permission."2
In June 1968 , Antionette Matlock, one of the two
alleged discriminatees in this proceeding, telephoned
Charles West, an organizer of the Charging Union, and
requested that he mail her union authorization cards with
the eventual purpose of having the Union represent
Respondent's employees. He complied with her request
and upon receipt of these authorization cards, she
proceeded to distribute them. On July 18, 1968, Murdock,
the other discriminatee, handed a fellow employee, who
was working at his machine, union authorization cards
and asked him to distribute them to other employees. This
was observed by a supervisor who accused Murdock of
soliciting employees to sign union cards on company time,
and premises . Murdock admitted his guilt and implicated
his coworker Matlock, stating he had received the cards
from her. Murdock, signed a termination paper, was given
his check and discharged A few minutes later, Matlock
was called into the personnel director's office and
confronted with Murdock's accusation that she had given
him union cards. She denied the charge at first but finally
admitted it. She was handed a termination notice, signed
it, given her check and discharged for violating the
Company's no-solicitation rule.
B. The Facts
1. Section 8(a)(1)
There is no dispute over the facts with respect to this
alleged violation. It is acknowledged by the Respondent
that the language of the posted no-solicitation rule was
too all-encompassing in that it forbid employee
solicitation on their own time. However, argues
Respondent, the notice was drafted by its former director
of personnel, a layman, who was neither versed nor
conversant with labor law or the semantic intricacies of
drafting a valid no-solicitation rule. Moreover,
Respondent states, in actual practice, it had never
prohibited solicitation on an employee's own time but only
on company or working time.
These extenuating circumstances, however, merely
explain but cannot legally justify the posting of the notice,
detailed above, as the employees of Respondent are not
grammarians . The law is explicit, however, that the rights
of employees to engage in solicitation or distribution of
literature on company premises during nonworking time is
one of the rights guaranteed by Section 7 of the Act. This
right may be circumscribed only if the employer can
demonstrate that unusual circumstances make some
limitation on the right necessary to maintain production
or discipline.' No such circumstance has been shown here.
Accordingly, it is found that Respondent violated Section
8(ax I) of the Act.'
'The bulletin board is neither enclosed in glass nor locked The
no-solicitation notice consisted of two pages, one on top of the other, with
the part quoted above on the second page which could be read by lifting
the first page.
'Cf N L R.B v. Mock Road Super Duper, Inc., 393 F 2d 432 (C A 6),
and the Board 's decision in the same case , 156 NLRB at p. 984
'See Republic Aviation Corp. v N L.R B , 324 U S. 793, 797-798, 803
GREENTREE ELECTRONICS CORP. 923
2. Murdock' s discharge
Murdock, who was employed as a•slitter, was hired on
August 31, 1967, and fired on July 12, 1968. He admits
that he importuned Roger Canup, a fellow employee, to
sign a union card while Canup was operating the machine
to which he was assigned. He also gave Canup additional
cards to solicit other employees. Murdock stated that on
July 12, 1968, about 9 a.m., he was called into the office
of Schiavone, the director of personnel, at which time his
supervisor, Clarke, also was present. Murdock's testimony
continues:
They asked me about the union and if I was passing out
the cards, and I said yes . . . he [Clarke] might have
asked me if I had given a card to [Canup] and I said,
yes. He said you are terminated. Then he told me I
could have gone a long way with the company and that
I was a good slitter ....
Murdock admitted Matlock spoke to him about the
Union at the plant but denied it was on company time.
Ralph L. Schiavone, director of personnel, testified as
follows:
Mr. Clarke told Jerry [Murdock] that Roger Canup
had told him that Jerry [Murdock] gave Roger [Canup]
a union card. Jerry [Murdock] at that point said, why
you saw me, you were standing there . . Clarke
asked Jerry [Murdock] if he wasn't happy at Greentree
and Jerry [Murdock] said, yes, I am. He said then why
are you giving out union cards on company time, and
he said he was doing it as a favor for Toni Matlock, she
asked me to give them out to the second shift because
she didn't know anyone on the second shift. Fred
[Clarke] asked Jerry [Murdock] when did she [Matlock]
give you the cards, and he said during the day
sometime . Fred said on company time, and he said I
suppose. At this point Fred asked him again did you
know this was a violation of company policy, the no
solicitation rule on company time, and he said I think
so. Then I asked him to read a statement and informed
him that we were terminating him as a result of his
violation of company policy . He read it and I
asked him, do you understand its meaning and effect
and do you have any questions, and he said, no, where
do I sign . . . . He was given his check and asked to
leave.
The version of Murdock's discharge by the supervisor
of the slitting room, Fred Clarke, reads as follows:
I walked up to the slitting area approximately 20 after
3:00 . . The 15 minute overlap was arranged [in
order that] the swing shift could take over the machines
and the day shift had 15 minutes to clean up the
garbage [waste and trash from the machines], therefore
[there was] a continuity of production . . . . I observed
Mr. Murdock handing Roger Canup something and an
attitude of a suspicious nature . They had a startled look
on their faces when I looked up. . . . I didn't say
anything to the employees. I reported to Mr. Schiavone
. He asked me to observe fully and investigate from
Canup if in fact this was a union card . . . . I did and
he did say that Mr. Murdock gave him a card. [Clarke
requested Murdock to go to Schiavone's office.] I
fn. 10; King Radio Corporation, Inc v. N.L R B., 398 F 2d 14 (C A. 10);
As to contract prohibitions , cf. Gale Products, 142 NLRB 1246; General
Motors Corporation v. N L. R B., 345 F 2d 516 (C.A. 6), and N L. R B v
Mid-States Metal Products, Inc., 403 F 2d 702 (C.A. 5), 69 LRRM 2656
believe I started out with saying, Jerry, in the past I
have had many opportunities or many reasons to fire
you and Mr. Murdock agreed. I said it has come to our
attention that you have passed a union card and that
you just passed one to Mr. Canup and we are going to
terminate you for this. Mr. Murdock's reaction was
wait a minute, he said, like that, he said I handed these
cards out doing someone a favor, and I said who was it
and he was reluctant to answer the question. I said to
him, was it Toni Matlock and he said, yes. Toni asked
me, gave me some cards and asked me to give them out
to the second shift because she didn't know anyone on
the second shift .... We asked Jerry if he knew he was
doing the wrong thing and he said, yes, I know that was
wrong doing, and he said I went in to it with my eyes
open. He said you are only doing your job; there is no
hard feelings. Then he said, do you want me to go, and
I said no, hold on, you've got to be paid and also
you've got to sign this. So Mr. Schiavone handed him
the statement that he sat and read and he was asked if
he fully understood it, and he said he did, and he signed
it and we gave him a copy of the statement, I believe,
and also his paycheck.
3. Matlock's discharge
Matlock was employed as a rewinder from June 22,
1964, to July 12, 1968. She telephoned an organizer of the
Charging Union in June 1968, and asked him to mail her
union cards which she proceeded to distribute to
,Respondent's employees. On the morning of July 12, she
was called into Schiavone's office and Clarke, according
to Matlock's testimony, said to her:
. that I was passing union cards around and that I
had given Jerry [Murdock] a union card, and I said I
did not, and he said that I did, and I said I did not, and
he said you did. Then he said why did Jerry [Murdock]
sign a deposition say you had given him a card if you
hadn't, that you had given him a card, if you hadn't. So
I said I don't know, but I did not do it and we were
argumentative back and forth and then finally I asked if
there was something he was trying to tell me . . . I
will swear on a stack of Bibles that I didn't give him a
card, but if you want me to say it that I did, I did, and
then Mr. Schiavone read the verification of termination
and I signed it and Fred [Clark] . . . said if you didn't
give him any cards, why do you say you did? I just
raised my hands and they escorted me out to the car.
Schiavone testifed as follows:
I then instructed Mr. Clarke to bring Mrs. Matlock to
my office about 9:00 or some 30 minutes later. In the
interim period I went out to my secretary and had her
type a statement similar to this and had a check drawn
up for Mrs. Matlock .... Mrs. Matlock came into the
office .... Then Fred said , we have been informed that
you have been passing out union cards on company
time and she denied it. He said, well, Toni, Jerry
Murdock told us that you gave him union cards, and
she said , well, if he said I did I guess I did. Fred then
said, you don't have to admit to anything , unless it is
true. Then she said if Jerry said I did I guess I did and
then I intervened and said in that case this constitutes a
violation of company policy and no solicitation rule on
company time. I read her the statement and asked her
if she understood its meaning and effect, and she said
she did and where do I sign it and that was the end of
that.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clarke's version of Matlock's discharge reads as
follows:
About 15 or 20 minutes later Matlock was called into
the office. I said, Toni, it has been brought to our
notice that you have been handing out union cards on
company time, and she said, not me. I said, Toni, it is
common knowledge that you have union cards and that
you have been handing them out. She said I did not ...
. And she said that she did not, but I said, Toni, Jerry
Murdock has admitted that he got the cards from you,
and she said if he said I did, just say I did and let's
leave it at that. What is going to happen now, are you
going to let me go? ... Mr. Schiavone said ... we are
going to let you go for soliciting for an outside
organization on company time . . . Mr. Schiavone I
believe read the article to her, and gave it to Toni to
read, and asked her if she understood exactly what she
was signing and she said she did. She signed it, and she
was given her paycheck.
4. Credibility
In determining credibility in this proceeding, the
following has been considered inter a/ia: the demeanor and
conduct of the witnesses ; their candor or lack thereof;
their apparent fairness, bias or prejudice ; their interest or
lack thereof; their ability to know, comprehend, and
understand the matters about which they have testified;
whether they have been contradicted or otherwise
impeached ; the interrelationship of the testimony of
witnesses and the written evidence presented ; and the
consistency and inherent probability and plausibility of the
testimony and the probative diminution of answers elicited
by leadin# questions asked of witnesses by counsel.'
Judge Medina discussed the indicia involved in judging
credibility when he commented as follows:' "By what
yardstick and in accordance with what rules of law are
you to judge the credibility of the witness . ? This
judging of testimony is very like what goes on in real life .
You ask yourself if they know what they are talking
about . You watch them on the stand as they testify and
note their demeanor . You decide how their testimony
strikes you."
The Supreme Court held' before the enactment of the
Labor Management Relations Act of 1947 (67 Stat. 136),
that the evidence necessary to make a finding of an unfair
labor practice must be "substantial ." Substantial evidence
is such evidence as affords a substantial basis of fact from
which the fact in issue can be reasonably inferred.'
Substantial evidence must be such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Substantial evidence must have rational
probative force ; it must carry conviction ; it must be more
than a scintilla , and must do more than create a suspicion
of the existence of the fact to be established.' And the test
is not satisfied by evidence which gives equal support to
inconsistent inferences ." Furthermore, the burden is upon
the General Counsel to prove affirmatively and by
substantial evidence that the acts alleged in the complaint
were illegally motivated."
'See Liberty Coach Company, Inc., 128 NLRB 160.•
'U.S. v Foster, 9 F.R.D 367, 388-390 (S D .N.Y.).
'Consolidated Edison Company of New York, Inc. v N.LR.B, 305
U.S 197, 229
'N.L R B v. Columbian Enameling & Stamping Company, Inc.. 306
U.S. 292, 299.
'Universal Camera Corp v. N L R B, 340 U.S. 474, 477
Moreover, the Board and the Courts, in other cases
where it has been found that the Respondent had
committed unfair labor practices, have considered a
respondent's animus or hostility toward union activities. '_
Evenhanded justice would require that where there is no
substantial evidence produced by the General Counsel to
show such antiunion bias, that this factor should be
considered in evaluating whether the Respondent in this
proceeding has committed any unfair labor practices.
There is no substantial evidence, if any evidence at all, in
the record of this case to support such a conclusion. This
probative and significant factor also casts doubt upon the
representative of the General Counsel's statement in his
brief (p. 1), that Murdock and Matlock were discharged
"because they engaged in union activity." His contention
that these two employees were discriminatorily terminated
in retaliation for engaging in union activities lacks a
crucial element - independent evidence of antiunion
motivation which is essential to finding a prima facie case
of discrimination within the meaning of Section 8(a)(3) of
the Act.'
The General Counsel's representative alleged at the
hearing that: "Mrs. Matlock was brought in, she was
questioned in a form which was very harassing she will
describe it herself - she was frightened to death - first
she vigorously and repeatedly denied that she had given
Mr. Murdock any cards and finally in order to get away
from the frightening and frightful situation, she admitted
she had and she signed the termination papers and fled in
fear of her life."'
The General Counsel's representative in his brief
argues , however, that "the evidence with reference to the
discharge of Matlock shows clearly the lengths to which
Respondent was prepared to go to find a pretext for the
discharge ." He states Matlock "vigorously" denied the
accusation of giving Murdock union cards "but in the face
of persistent and loud questioning, she threw up her hands
and said, if you want me to say I did, I did. Using this
equivocal statement as a confession" continues the brief,
"Schiavone promptly discharged Matlock, as he had
planned to all along."
5. Resolution of credibility and concluding findings
Murdock's testimony was inconsistent, equivocal,
evasive, contradictory, and in some respects incredible. It
is uncontradicted that Canup was operating his machine
when Murdock interrupted him by asking him to sign a
union card and to solicit his coworkers on the second
shift. It is not too unreasonable to infer, and it is so
found, that Murdock interfered with Canup's work.
However, Murdock denied he made this request of Canup
on company time, testifying that the first shift on which
he worked from 7 a.m. to 3:30 p.m. had ended." The
testimony of Murdock himself on cross-examination as
well as the timecards of both he and Canup" reveal there
"Eastern Coal Corporation v N L R B, 176 F 2d 131, 135, 136, (C A
4).
"See Martel Mills Corporation v. N L.R B. 114 F 2d 624 (C A 4),
NLRB v Entwistle Mfg Co, 120 F 2d 532 (C A. 4).
"'It is self-evident , of course , that employers do not welcome the advent
of a union.
"Economy Stores, Inc, 120 NLRB 1, 8; Schwob Manufacturing
Company v. N L R B, 297 F.2d 864 (C A. 5)
"See N L.R B v. Bdlen Shoe Co , 397 F 2d 801 (C A 1).
"The hours of the second shift were 3:30 p.m to midnight.
"Resp Exh 6 and 7.
GREENTREE ELECTRONICS CORP.
is an overlap of 15 minutes between the first and second
shifts during which time the first shift employees clean up
around their machines while the second shift employees
prepare to operate the same machines that were in use
during the first shift. Murdock admitted this when he
acknowledged there was a "cleanup time" overlap of
"about 10 minutes." Murdock's testimony as to these
material facts was willfully untrue so that this furnishes a
ground for disbelieving his other testimony and tends to
show consciousness of wrongdoing on his part and has
probative force as to his credibility.
The bulletin board is at eye-level next to the timeclock
which records the time of an employee's arrival and
departure from work. Posted on this bulletin board are
various written communications and announcements for
the employees' information as well as notices required by
law to be brought to their attention. Although the notice
regarding solicitation had been posted for 6 to 7 months
on this bulletin board prior to the time Murdock gave
Canup the union cards, he incredibly testified he was
unaware of any no-solicitation rule and that he had
neither seen the notice nor the bulletin board itself
although it was next to the timeclock which he punched
ten times a week. See p. 2, supra. Murdock's testimony
that he did not know of any company rule prohibiting
solicitation on company time is also self-contradictory in
that he testified he knew he was supposed to devote his
entire time and full attention to his duties when on
company time and that he was not to interrupt or distract
a fellow employee by soliciting him to engage in union
activities. Additional corroboration of the
untrustworthiness of Murdock's testimony is his incredible
assertion that he believed it was permissible to distribute
union cards to an employee during the latter's working
time - and this, in the face of his testimony that he had
been employed at other industrial plants.
Furthermore, Murdock admitted at the hearing that he
told Clarke and Schiavone he had received the union
cards from Matlock although in his affidavit which he
gave to a Board investigator , he contradicted himself by
denying that he told the company officials Matlock gave
him the union cards . When he was asked at the hearing
how he explains these inconsistent statements, he lamely
answered: "I don't know," and admitted "some part" of
his affidavit was incorrect. For these reasons his testimony
is not credited except to the extent that it is in agreement
with the credited testimony.
Matlock did not favorably impress the trier of these
facts. Her testimony was ambiguous, equivocal and in
some respects incredible. On cross-examination, when the
questions asked were not to her liking, she took refuge in
obscure replies. She incredibly testified that she did not
know it was against company policy to engage in activity
of a personal nature on company time and this in spite of
being employed by Respondent for four years and her own
admission that the no-solicitation notice dated January 18,
1968, was on the bulletin board located, in her own words,
"besides the time-clock." She contradicted herself as to
whether she was active in the Union. At one point she
denied she was active in the 1967 election (other than to
attend meetings), but in her affidavit, she stated otherwise.
Pavese, a union proponent in the 1967 election campaign,
testified she engaged in union activities at that time in
nonworking areas on her own time.
On the other hand, the testimony of Respondent's
witnesses, Schiavone and Clarke was consistent,
reasonable, in accord with the probabilities and
persuasive.
925
The contention of the General Counsel's representative
that Matlock was coerced when she signed the termination
paper is belied by the uncontroverted evidence. It is
uncontradicted that she first read and then signed the
termination paper dated July 12, which reads in pertinent
part as follows:"
YOU ARE HEREBY TERMINATED, EFFECTIVE THIS DATE,
FOR VIOLATION OF COMPANY POLICY. SPECIFICALLY:
SOLICITING FOR AN OUTSIDE ORGANIZATION ON
COMPANY PROPERTY AND ON COMPANY TIME, WITHOUT
PERMISSION.
/s/ R. L. Schiavone
R. L. SCHIAVONE
DIRECTOR OF
PERSONNEL
I HEREBY RECEIPT FOR THE ABOVE, UNDERSTANDING ITS
MEANING AND EFFECT.
/s/ Antoinette Matlock
ANTOINETTE
MATLOCK
It is found that when both Murdock and Matlock signed
the termination papers that this was a voluntary quit on
their part with no misrepresentations, coercion or threats.
There is a lack of credible testimony that Respondent's
terminations of Murdock and Matlock were motivated by
union animus or discriminatory intent . Militating against
such a finding is the absence of a scintilla of evidence that
the Respondent harbored such animus or that it
discriminatorily applied its no-solicitation rule. See above.
To establish that a no-solicitation rule was disparately
applied to union solicitation, the General Counsel's
representative had the burden of proving that prior
approval for nonunion outside activities of this type
regularly was waived by the company.18
The General Counsel's representative cites the following
as evidence that the Respondent Company's
no-solicitation rule was applied in a discriminatory
manner as to Murdock and Matlock, pointing to the
following employees who sold commercial products with
no disciplinary action being taken against them by the
Respondent Company: (1) Guy Coleman, a "foreman" of
the slitting department, selling a pin to Murdock to raise
funds for the United States Olympic team; (2) Eleanor
Shafer selling Fuller Brush products to the employees; (3)
Loretta Ordway selling Avon products to employees; (4) a
"check pool" in which employees allegedly participated;
(5) Frank Dobratz, a mechanic, who sold girl scout
cookies in 1966 for his daughter; (6) Kenneth Pavese who
engaged in activities on behalf of another union prior to
the September 1, 1967, election when, inter alia, he pasted
union stickers about the plant which read "Vote Yes,"
meaning for the union; (7) Murdock's testimony on
rebuttal that he participated in a world series baseball
pool along with Larkin, a "foreman."
In this case, he did not produce sufficient credible
evidence that the no-solicitation rule was discriminatorily
applied in the discharges of Murdock and Matlock."
There is no basis in the record for concluding they were
terminated for proscribed reasons. Both Murdock and
Matlock admitted the Company's charges against them
and thus proved the accusations leveled against them.
"The same paper was signed by Murdock.
"Mason & Hanger Co v N L R B, 405 F 2d I (C A 5)
"These were the only two employees discharged for violating the
no-solicitation rule.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, Clarke and Schiavone are credited that
Murdock and Matlock were discharged for soliciting and
engaging in union activity on company time and not for
antiunion considerations. The discharges, based on
legitimate and substantial business justifications,
constituted a lawful exercise of managerial right and
prerogative."
With respect to the Olympic pins, the credited
testimony reveals that the General Counsel failed to prove
that this solicitation occurred on company time. Murdock
himself , on cross-examination , stated when asked if
Coleman sold these pins on company time: "not exactly.
No." Murdock stated that this incident (which occurred in
March 1968) was in a nonworking area in the morning
before work had begun on the first shift. In fact,
Murdock, when questioned by the General Counsel's
representative, tacitly admitted the solicitation was not on
company time as he testified that he begins work at 7
a.m. and Coleman's shift ends a 7 a.m.
Coleman, in refuting the charge that this incident
occurred on company time, testified that he either sold
these pins during lunch or coffee breaks by placing them
on the "foreman's desk in the passageway and if anybody
wanted one they could take it and leave their donation."
Based upon Coleman's credited testimony, it is found that
there was no discriminatory application of the
no-solicitation prohibition in the sale of Olympic pins.
The uncontradicted evidence reveals that the sale of
Fuller Brushes and Avon products by Shafer and Ordway,
respectively, was not on company time. Nor has it been
established by the General Counsel's representative by a
preponderance of the credible testimony that when
Dobratz sold girl scout cookies in 1966, for his daughter
or when a check pool was allegedly conducted by some
employees or when Kenneth Pavese in the summer of
1967 posted union stickers about the plant,32 that such
activity was on company time or that Respondent was
aware of such activities. 23
Murdock's testimony on rebuttal that a world series
pool was conducted by employees and a foreman named
Larkin is not credited. Although Murdock testified on his
direct examination regarding the Olympic pin incident, he
made no mention of the world series pool. When he was
recalled for rebuttal, he was asked by Respondent's
counsel why he failed to mention this world series pool
incident on his direct examination; he incredibly testified:
"No one asked me about it."2' At one point in his
testimony, he states he saw "foreman" Larkin purchase
tickets for this pool on seven occasions but later he
equivocated by recalling it was only on two or three days
and finally he took refuge in a negative and evasive
answer of "I can't remember." Where his testimony on
direct examination merely strained credulity, Murdock's.
testimony on rebuttal shatters it beyond repair in the
context of him implicating Larkin whose ill-timed visit to
Ireland at the time of the hearing rendered him
providentially unavailable as a witness to give his version
of this incident. Moreover, Pavese testified that he never
observed any employees engaged in a world series pool.
These instances of solicitation cited by the General
Counsel were not only unrelated to union activity (except
Pavese's union stickers in 1967) but were also de minimis.2s
It is not necessary to consider whether a rule barring
solicitation must by hypothesis and definition relate and
be limited to concerted or protected activities or whether
the word "soliciting" in the Company's rule (supra) refers
to selling commercial products and not union solicitation.
a preponderance of the evidence that Respondent
discriminatorily applied its no-solicitation rule by
enforcing it only where Murdock and Matlock were
involved, while allowing other forms of solicitation on
working time. The record in this proceeding reveals that
there is not preponderance of the evidence to establish
that Murdock and Matlock were discharged for any
reason other than their engaging in union activities on,
company time and premises.
Moreover, the record reveals a lack of support for the
General Counsel's contention that the circumstances
surrounding the adoption of the no-solicitation rule
disclose the rule was promulgated to interfere with the
employees' organizational efforts or that it was applied in
a discriminatory manner with respect to Murdock and
Matlock. Belying the contention is the 1967
organizational campaign culminating in the September 1,
election, as well as the Company's exemplary conduct in
the instances cited by the General Counsel, supra, of the
various employees' in-plant activities. In some of these
instances, the General Counsel failed to show knowledge
on the part of the Respondent and with respect to
Pavese's union activities, no wrongdoing or knowledge
was shown vis-a-vis Respondent. There is no probative,
substantial evidence that the no-solicitation rule was
intended to limit union activities more severely than
commercial activities, as revealed by Respondent's policy,
consistently enforced, which was to limit all types of
activities on company time where Respondent was aware
of such conduct. The record reveals that Murdock's
discharge was due to distracting Canup from his work and
Matlock because of her unprotected union activity on
company time. When good cause for discharge is clearly
established, it should be borne in mind that the burden of
proof is on the General Counsel.36 In discharging
Murdock and Matlock, Respondent did not discriminate
against them within the meaning of Section 8(a)(3) or
interfere with the free exercise of employee rights under
the Act.27 This is because the statutory language [of
Section 8(ax3)] "discrimination ... to . . . discourage"
means that the finding of a violation normally turns on
"Eleanor Shafer , a witness called by the General Counsel , admitted that
she knew it was not permissible to solicit while on company time She
testified that if she "was running a business" she would not permit
employees to solicit on company time.
"Dobratz ' uncontradicted testimony is that he requested and received
permission from his supervisor provided it was on his own time and not
company time.
"Pavese , a union proponent in the 1967 election, testified that he has
known of the Company' s no-solicitation rule since 1965 , and that the
Company never learned it was he who was pasting the union stickers about
the plant during the 1967 organizational campaign.
"Dobratz ' testimony stands uncontradicted that in the summer of 1967,
Brant , president of the Company, told all the assembled employees that
they could not solicit for any outside organization during working hours
"This was not proper rebuttal I Wigmore, Evidence Section 174 (3d
ed ) states "The proponent may in his case in rebuttal introduce facts and
witnesses appropriate to deny, explain , or discredit the facts and witnesses
adduced by the opponent , but not any facts or witnesses which might
appropriately have been introduced in the case in chief "
"Schiavone testified disciplinary action has been taken with respect to
employees drinking intoxicating beverages on company premises and
disregarding safety rules.
'IN L R B v Billen Shoe Co, 397 F.2d 801 (C A 1), European Cars
Ypsilanti, Inc. 136 NLRB 1595, Phillips & Buttorff Manufacturing
Company, 96 NLRB 1091 , Mississippi Products, Inc, 103 NLRB 1388,
Ford Motor Co . 23 NLRB 342
"Cf Lincoln Bearing Co v. N L R B, 311 F.2d 48, 50 (C A 6)
GREENTREE ELECTRONICS CORP.
whether the discriminatory conduct was motivated by an
antiunion purpose ." No such purpose was shown by the
General Counsel in this proceeding . Accordingly, it is
recommended that paragraph 11 of the complaint be
d ism issed.
It is unnecessary to pass on the fact that the
no-solicitation rule was too broadly worded and thus
invalid and, therefore , the employees ' discharges were not
bottomed on valid grounds . This is a non sequitur as there
is no causal relationship between this invalid rule and their
discharges ." Their discharges were for valid cause and not
union animus . The invalidity of the company's
no-solicitation rule which violated Section 8(a)(1) is
irrelevant in determining a violation of Section 8(a)(3), as
that section in the circumstances here presented requires
proof of anti-union motivation to sustain a violation. In
the absence of such proof , a discharge based on a
company rule invalid under the Act, would not ipso facto
render the discharges unlawful under Section 8 (ax3).'°
Moreover , the question of whether the invalid
no-solicitation rule so tainted the discharges of Murdock
and Matlock should be considered in the aggregate. Under
the circumstances and on the record as a whole, it is
found that the rule ' s promulgation has no casual
connection to the Section 8(a)(3) allegation , nor is it
sufficiently pervasive to infuse the two employees'
discharges with the stain of illegality."
The complaint alleges that Schiavone and Clarke
interrogated employees on July 12 , in Schiavone 's office
and created the impression of surveillance . Since no
employees are named , it is reasonable to infer that
reference is made to Murdock and Matlock as they were
the only two employees in Schiavone's office on July 12.
927
There is not a scintilla of probative and credible
evidence to substantiate the surveillance allegation. With
respect to interrogation and based upon the evidence
detailed above, the Respondent's officials were entitled to
ask Murdock if he had engaged in union solicitation on
company time and when he implicated Matlock, to
question her also about the accusation that she gave
Murdock the union cards. The Company had the
justifiable right to make such inquiries as a basis for
considering disciplinary action. The questioning was for a
legitimate purpose and not intended to coerce or threaten
Murdock and Matlock or interfere with their statutory
rights. The interviews were for a bona fide purpose; it was
not to develop information and, therefore, not coercive
interrogation within the meaning of Section 8(a)(l).1=
Accordingly , it is recommended that paragraph 7 of the
complaint be dismissed."
Recommended Order omitted from publication.
"N L R B v Great Dane Trailers, Inc, 397 U.S. 29
"Cf Hoskins Ready-Mix Concrete, Inc, 161 NLRB 1492, 1494-95;
Powers Regulator Company, 149 NLRB 1185
"Hoerner-Waldorf Paper Products Co , 173 NLRB No. 168
"Cf. Hammond & Irving, Inc, 154 NLRB 1071, 1072, Wa/mac
Company, 106 NLRB 1355, 1356
"N.L R B v. Sellers, 346 F.2d 625, 632 (C.A. 9)
"In American Freightways Co, Inc, 124 NLRB 146, 147, the Board
stated
It is well settled that the test of interference , restraint , and coercion
under Section 8(axl) of the Act does not turn on the employer 's motive
or on whether the coercion succeeded or faded The test is whether the
employer engaged in conduct which , it may reasonably be said , tends to
interfere with the free exercise of employee rights under the Act