Hyland Machine Co.

National Labor Relations Board - Board Decisions

May 30, 1974

210 N.L.R.B. 1063 (N.L.R.B. 1974)

HYLAND MACHINE CO.
Hyland Machine Company and Jim L. Barnett. Case
9-CA-7905
May 30, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 9, 1974, Administrative Law Judge
Eugene F. Frey issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Administrative Law Judge and
hereby orders that the Respondent, Hyland Machine
Company, Dayton, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
MEMBER KENNEDY, dissenting:
For reasons fully set forth herein, I do not agree
with my colleagues' decision to adopt the opinion of
the Administrative Law Judge. Instead, I would
dismiss the complaint in its entirety.
The Boggs Incident
On June 3, 1973, employee Boggs found a union
handbill on his motorcycle parked near a plant
entrance. He put the handbill in his lunchbox and
placed the box on his bench top with the leaflet
sticking out the top. Later on, the shift foreman,
Snyder, came to Boggs, said he had seen another
employee reading the handbill, and told Boggs to
take it out of the shop. Boggs refused and said that
i We note the Administrative Lau Judge's inadvertent reference in In 3
of his Decision to "Hyland, Jr.," rather than Hyland, Sr
2 Contrary to our dissenting colleague, we do not regard a rule which
requires that the employees, while at the plant, must "devote your efforts
here only to Company business" as plainly permitting union solicitation
during nonwork time
Also contrary to our dissenting colleague, we do not regaru Respondent's
admission at the discharge interview that Ba r,: i"s union activity was "what
brought it [Barnett's discharge ] all on" as an ambigious phrase susceptible
210 NLRB No. 148
1063
he had a right to have the handbill on company
property. Snyder replied "it was OK on your time
but you cannot have it on company property during
company worktime." When Boggs again refused,
Snyder discharged him. However, Snyder said that
Boggs could talk to President Forrest Hyland, Sr.3
At the end of his shift, Boggs had his interview with
Hyland, Sr. Boggs explained what had happened and
asserted that he had the right to solicit in the plant
for the Union. Hyland, Sr., agreed to this statement,
adding that he would defend Boggs ' right to organize
and belong to a union, and that Respondent could
not interfere with that right, but Respondent had a
simple rule that workers could not solicit for the
Union on worktime, because worktime was for work,
that was what the employees were paid for, but they
could solicit in the plant on their own time, like at
lunch and break time. Boggs asked if he could go
back to work. Hyland, Sr., replied that he could, that
he deserved the benefit of the doubt. Boggs was
immediately reinstated to his fob with full backpay.
During a discussion of the Union, Hyland, Sr., said
he felt that each plant had to be considered
individually, that he did not think a union was right
for his plant since he was a good employer and
unions were for bad employers. He also expressed
the opinion that his employees would vote against
the Union. After this incident, Boggs saw union
literature in the plant and also talked to workers
about the Union during his break periods. There is
no evidence of interference with such activities.
Respondent had a plant rule which reads as
follows:
Devote your efforts here only to company
business-personal work or soliciting the help of
other employees in the performing of personal
work is banned.
The Administrative Law Judge found that this rule
has never been applied to solicitation in the plant,
but was instituted and designed only to prevent
workers from using company machines and work-
time to make personal items or small parts for
personal equipment. The Administrative Law Judge
also credited Hyland, Jr.'s testimony that during his
9 years with the Respondent, there have been no
occasions when the rule had to be enforced and that
at the present time there is no rule prohibiting union
of an interpretation that the discharge was caused by factors other than
Barnett 's union activity In our view , the statement clearly means that,
notwithstanding Barnett's other faults, but for his union activity, he would
not have been terminated
3 The Administrative Law Judge states that the company president is
Forrest Hyland, Jr This is an error Forrest Hyland , Jr., is a vice president
of Respondent. He was not involved in the Boggs' incident Boggs' interview
was with Hyland, Sr.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation in the plant. The Administrative Law
Judge also specifically found that "it is a permissible
inference that employees generally were aware that
Respondent was not prohibiting union solicitation at
any time or place during the 1973 campaign."
Notwithstanding the above findings, the Adminis-
trative Law Judge concluded that the rule was
invalid because it was "vague and ambiguous" and
might be interpreted in such a way as to cause
employees to refrain from exercising their statutory
rights. He also found that the suspension of Boggs
amounted to an "instant application" of the unlaw-
fully broad rule and that Hyland, Sr.'s prompt
corrective action of that suspension did not dissipate
the effect of that suspension on other employees
since there is no proof that Hyland, Sr., gave his
corrective action "the same publicity that the
suspension received."
I do not agree either that the rule was invalid or
that Hyland, Sr.'s corrective action did not undo the
effect of Boggs' suspension. The language of the rule
is not on its face ambiguous in my opinion. It
prohibits the performance of "personal work" on
company time. The Administrative Law Judge's own
findings are that the rule was applied only to prohibit
employees from using company machines and time
to make parts for personal use, that it has never been
used to prevent employees from soliciting in behalf
of a union, and that employees understood that they
were not forbidden to engage in union solicitation at
any time or place during the 1973 organizational
campaign. There is absolutely no evidence that any
employee interpreted the rule as placing restrictions
on union campaigning. The meaning which the
Administrative Law Judge placed on the rule is a
product entirely of his own thinking and is not based
on the evidence. Under these circumstances, I reject
the Administrative Law Judge's finding that the rule
was violative of Section 8(a)(1) of the Act.4
As to the Boggs' suspension, Hyland, Sr., promptly
rectified the action taken against Boggs by reinstat-
ing him with full backpay and assuring him that he
had the right to engage in union activities in the plant
during nonworking time. The Administrative Law
Judge found, however, that this corrective action was
not effective because there was no proof that it was
as widely publicized as the suspension. The trouble
with this finding is that there is no evidence as to the
publicity given either the suspension or the corrective
action. If we are to rely on speculation rather than on
evidence, there is reason to believe that the suspen-
sion did not have any lingering effect because Boggs
4 See Sterling Faucet Company, 203 NLRB No 144 In finding that the
rule was unlawful , the Administrative Law Judge cited Solo Cup Company,
144 NLRB 1481 The rule in that case forbade "unauthorized solicitation on
company property " The Board found that the wording of the rule was
testified that after his reinstatement he saw union
literature in the plant and he talked about the Union
to other employees as he pleased, without hindrance.
In addition, the Administrative Law Judge himself
found that "employees generally were aware that
Respondent was not prohibiting union solicitation at
any time or place during the 1973 campaign." I
would, therefore, find that the Boggs' disciplinary
action was corrected by Respondent's prompt
remedial action and hence warrants no remedial
action by this Board.
Discharge of Jim L. Barnett
Barnett was employed on April 30, 1973, as a parts
inspector. He was hired by Quality Control Supervi-
sor Poft who told him on hiring that he would be on
probation for 90 days in which period Poft would
check his work closely as Poft had to decide at the
end of the probationary period whether to retain him
as a permanent employee. During the employment
interview, Barnett mentioned that he had been an
officer of a labor organization and that he had been
discharged from his previous employment because of
an argument with a supervisor. Poft said that he did
not care about Barnett's union membership, all that
he was concerned with was Barnett's doing a good
job.
Barnett performed satisfactorily during his initial
30 days of employment when he worked under Poft
on the day shift. He was then transferred to the night
shift under Foreman Snyder. While on that shift, he
was active on behalf of the Union. He was also the
recipient of a number of justified reprimands. As
found by the Administrative Law Judge, on the night
of June 7 Barnett inspected and passed as satisfacto-
ry two groups of machine parts which the day
inspector found were defective. Superintendent
Barnes reprimanded the machine operators who had
produced the parts and Barnett who had improperly -
inspected them. Barnett got angry with the repri-
mand, raised his voice in speaking with Barnes, and
said he would go home. Barnes replied that was
Barnett's decision. Barnett remained after Foreman
Snyder said he needed Barnett for inspection work.
Barnett's duties required him to move about in a
large area and to talk to employees about the quality
of their production. In early June Snyder reprimand-
ed Barnett for talking to one employee in a part of
the plant where no machines were running and no
inspection was necessary. About a week later, Snyder
again warned Barnett about spending too much time
talking to operators, after he observed Barnett
ambiguous and could be misinterpreted by the employees in such a way as
to cause them to refrain from exercising their statutory rights The rule in
the present case is much more specific and does not lend itself readily to the
same sort of interpretation
HYLAND MACHINE CO.
talking about 45 minutes to one employee, and about
30 minutes to another; there was no need for
Barnett 's extended conversations with either of these
employees. During the first week in July, Snyder
found Barnett talking to a worker running a machine
in an area where Barnett had no business being;
Barnett was on his lunch period at the time, but the
other employee was working. Snyder ordered Barnett
out of the area.
On July 12, Barnett reported for work at 10:58
p.m., his regular reporting time being 11 p.m.
Apparently he brought in with him union pencils,
pencil holders, and buttons which he had received at
a union meeting earlier that evening. On clocking in,
he walked to the shipping area to make a telephone
call. Foreman Snyder saw a box of union buttons
and literature at a machine and dumped it into a
trash can with a remark to a fellow foreman that it
did not belong on company property. Snyder then
began assigning jobs to workers as they clocked in.
About 11:05 p.m. he saw Barnett talking to another
worker in the grinding room. He then saw Barnett
remove the union materials that Snyder had previ-
ously dumped in the trash can. After he finished his
assignments , Snyder looked for Barnett to instruct
him on the inspection of a new part dust starting
production. About 11:15 p.m. Snyder finally found
Barnett talking on the telephone in the shipping
room where he had no right to be. After Snyder had
explained the inspection of the new part, Barnett
walked away. As Barnett was walking toward his
work station, another employee asked him for a
union button like the one Barnett was wearing.
Barnett removed his own button and gave it to the
other employee. Snyder observed the incident. He
asked this employee whether Barnett had given him
union material and received an affirmative reply.
About 11:20 p.m. Snyder walked over to Barnett who
was talking to still another employee and told
Barnett that if he did not get back to work and stop
soliciting for the Union on company time , Snyder
would have to send him home. Barnett replied that
he was not soliciting and knew his rights. Snyder
repeated his order and again warned that he would
fire him. Barnett replied loudly that he had not given
out union literature, only a union button to an
employee who had asked for it and dared Snyder to
go ahead and fire him. Snyder replied that he would
do dust that. He then reported the incident to
Superintendent Barnes saying he intended to fire
Barnett . Barnes agreed with the decision. At 11:29
p.m. Snyder punched Barnett out and told him to go
5 The Administrative Law Judge again confused the two Hylands
Hyland , Sr, was involved in the Boggs incident , Hyland, Jr, was the official
1065
home. He also told Barnett that he could come in
and talk to Vice President Hyland, Jr.,5 the next
morning about what had happened.
Pursuant to company policy giving a discharged
employee the right to appeal to Hyland, Sr., Hyland,
Jr., or Superintendent Barnes, Barnett appeared at
Hyland, Jr.'s office on the morning of January 13.
Hyland, Jr., called in Poft. Barnett then related his
version of what had happened during the previous
evening. Hyland, Jr., said that Snyder had reported
that Barnett had been talking too much with other
workers, that his work was unsatisfactory, and that
he had been insubordinate. Hyland, Jr., asked Poft to
explain the quality problems with Barnett's inspec-
tion. Poft reported on Barnett's poor work and
instances of long unnecessary discussion with other
workers. Hyland, Jr., then decided to uphold the
discharge. His reasons for so doing, he testified, were
Barnett's insubordination to Snyder, the poor quality
of his work, and the fact that he was a probationary
employee. On his examination by the General
Counsel, Barnett testified that at this interview with
Hyland, Jr., he asked Hyland, Jr., if he had been
fired for union solicitation in the shop and union
activities and that Hyland, Jr., replied that "this is
what brought it all on." According to Barnett,
Hyland, Jr., also said "this wasn't the only reason
they were firing me; they were firing me because they
had some complaints on my work and my work
wasn't satisfactory and I was insubordinate to the
foreman the night before." Hyland, Jr., was not
asked specifically whether he had made the remark
about the union activities bringing it all on.
The Administrative Law Judge found that the
General Counsel had proved a prima facie case of
discrimination against Barnett based on "Hyland's
opinions stated to Boggs at his reinstatement" about
the undesirability of union representation at the
plant, and the failure to overcome the effect of this
hostile attitude by publication of a valid no-solicita-
tion rule based on the theory of "working time for
work." I have several criticisms of this rationaliza-
tion. In the first place, the Administrative Law Judge
failed to note that there are two Hylands involved in
this case: Hyland, Sr., was the official who handled
the Boggs matter, and Hyland, Jr., was the official
who discharged Barnett. Moreover, I cannot agree
that Hyland, Sr.'s expressions or conduct relative to
Boggs showed an inclination to "take affirmative
steps to prevent workers from assisting the Union's
campaign to organize the plant." I think his entire
conduct shows the reverse. Not only did he revoke
the disciplinary action against Boggs, he also iterated
that Boggs had the right to engage in union activities
who handled the Barnett matter
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except on worktime. And while he did say that a
union was not right for his plant because he was a
good employer, his expression of opinion was of the
mildest kind. It certainly is not the kind of expression
which in our experience may be expected to lead to
unlawful conduct.
Regardless of whether Respondent has published a
valid no-distribution rule, this fact does not preclude
a supervisor from lawfully admonishing an employee
against distributing a union button to a fellow
employee on his working time when he is supposed
to be working.6 This was merely a reasonable
exercise of managerial prerogative. It required no
formal preexisting rule to validate such an admoni-
tion by a supervisor to an employee who was
supposed to be engaged in performing his assigned
duties.
Although the Administrative Law Judge credited
Barnett 's testimony that Hyland, Jr., said at the
discharge interview that Barnett's union activity
"brought it on," the phrase is ambiguous.? It could
mean nothing more than that Barnett's union
activities were responsible for the chip on the
shoulder attitude which brought on the confrontation
with Snyder. As against this testimony of Barnett,
there is the testimony credited by the Administrative
Law Judge that shortly after he began working by
himself on the third shift, Barnett began to spend
unnecessary long periods of time talking to other
employees, his inspections became spotty with
several glaring errors of passage of defective parts
which led to reprimands by the plant superintendent,
all of which were recorded by Snyder and led him to
conclude about the time of the discharge that he
would be compelled to recommend dismissal of
Barnett when his 90-day probation was completed.
In addition, according to the Administrative Law
Judge, Barnett, considered that his position as a
union member and official, in a nonunion plant, gave
him special status and perhaps immunities from the
ordinary rules of discipline applying to other employ-
ees. Finally, the Administrative Law Judge said that
if Respondent had a "well-publicized and valid no-
solicitation rule which limited the prohibition of
union solicitation to employees' working time, and
working areas, Snyder's order to stop the solicitation
would be valid, whether standing on its own or
considered as the last straw in a lengthening record
of poor performance by Barnett culminating in his
rank insubordination toward Snyder."
As I pointed out above, an employer has the right
to reprimand an employee for engaging in union
activity on working time regardless of whether there
is in existence a well-publicized and valid no-solicita-
tion rule. Working time is for work with or without a
written rule. And insubordination to a supervisor as
a rejoinder to such reprimand is not any less
insubordination because such a written rule is not in
existence. It is difficult for me to understand the
critical importance which the Administrative Law
Judge attributes to the existence of a written valid
no-solicitation rule in determining the lawfulness of
the discharge of Barnett in view of his own findings
as to the defective work of Barnett, his wastage of
time, his insubordination, and his probationary
status. I cannot conclude that "but for" Barnett's
union activities, he would not have been discharged.
The conclusion of the Administrative Law Judge that
these reasons were pretexts is not supported by
substantial evidence. It is drawn out of the air to
meet the formula necessary to establish a discrimina-
tory discharge based on pretext. I therefore dissent.
6 S & H Grossinger 's Inc, 156 NLRB 233, 247, Addison Shoe Corporation,
151 NLRB 65,71
7 I would note that the Administrative Law Judge did not find Barnett
an entirely credible witness. (See fns. 5 and 9 of the Administrative Law
Judge 's Decision .) The Administrative Law Judge specifically credited the
accounts of the July 13 interview by witnesses Hyland, Jr., Snyder , and Poft.
He added (fn. 9)
Testimony of [Barnett] in conflict therewith is not credited , in large
part because of his self-contradictions on the events of the 12th and
other facts and other admissions noted hereafter which indicate that he
felt he had special rights and immunities in the plant as a union
member and official.
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me on due notice to all parties on October
17, 1973, at Moraine, Ohio, with General Counsel and
Respondent appearing by counsel and the Charging Party,
Jim L. Barnett, appearing only as a witness, after pretrial
proceedings in compliance with the National Labor
Relations Act, as amended, 29 U.S.C. § 151, et seq. (herein
called the Act). The issues are whether or not Respondent
Hyland Machine Company, interfered with employees'
statutory rights by maintaining and enforcing an unlawful
no-solicitation rule, in violation of Section 8(a)(1) of the
Act, and suspended employee Willard Boggs and dis-
charged Barnett because of their sympathy for and
activities on behalf of International Association of Ma-
chinists and Aerospace Workers, AFL-CIO (herein called
the Union), in violation of Section 8(a)(3) and (1) of the
Act.' At close of the testimony all parties waived oral
argument, but General Counsel and Respondent have filed
written briefs with me which have been carefully consid-
ered in preparation of this Decision, which was signed and
released by me on January 2, 1974, for distribution to the
parties in the usual course.
Upon the entire record in the case , observation of
i The issues arise on a complaint issued September 5, 1973. by the
Board's Acting Regional Director for Region 9, after Board investigation of
a charge filed by Barnett on July 16, 1973, and answer of Respondent
admitting jurisdiction but denying the commission of any unfair labor
practices
HYLAND MACHINE CO. 1067
witnesses on the stand, and consideration of the oral
statements at the trial and written briefs, I make the
following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND STATUS OF THE
UNION
Respondent is an Ohio corporation engaged in the
manufacture of automatic screw machine parts at its plant
in Dayton, Ohio. In course of its business in the past 12
months Respondent has had a direct outflow of goods and
products valued in excess of $50,000. Respondent admits,
and I find, that it is and has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES 2
Barnett was hired by Respondent on April 30, as a
machine parts inspector and was in that job at his
discharge on July 13. When hired he was vice president
and a member of Local 225, and also vice president of
District 13, of the Union. In his hiring interview with Mel
Poft, quality control supervisor and first shift foreman and
admitted to be a supervisor within the meaning of the Act,
they discussed Barnett's duties, past experience and
qualifications. During discussion of his duties , Poft told
Barnett he was on probation for 90 days, in which period
Poft would check his work closely, as he had to decide at
end of the probation period whether he would be kept on
as permanent employee, or let go. In reviewing Barnett's
qualifications and past experience, Poft learned in one
employment Barnett had been discharged for an argument
with a supervisor. Barnett explained what occurred and
mentioned that he had been an officer of District 13 of the
Union in that plant, but assured Poft that his membership
would have no "bearing" on his desire to work here. Poft
replied that Respondent did not have a union in its shop,
and Respondent did not want any trouble with a union,
but as far as Poft was concerned, he did not care if Barnett
was a union member or not, that "would not have any
bearing on his employment, that all he was concerned with
was Barnett doing a good job," and he hoped everything
would work out for Barnett in the shop.
Upon his hire, Barnett became a probationary employee
for 90 days. After training the first 30 days on first shift
under Poft and a day inspector, he was transferred to third
shift on May 27, working as the sole inspector under
Foreman Frederick E. Snyder, an admitted supervisor.
While on that shift, he talked to employees about his
membership and offices in the Union, and some workers
asked him to help them get a union in the plant. He
procured union literature and authorization cards from his
local, distributed literature from his car to employees, and
got some to sign union authorization cards in the plant.
On June 3, Willard Boggs, a third shift screw machine
2 All dates stated herein are in 1973 , unless otherwise noted
3 The above facts are found from a composite of credible testimony of
operator, found a union handbill shortly after 1 a.m., on
his motorcycle parked near a plant entrance . He put it in
his lunchbox and placed the box on his bench top with the
leaflet sticking out the top . Later in the shift Foreman
Snyder came to him, said he had seen another employee
reading the handbill , and told Boggs to take it out of the
shop . Boggs refused , saying Snyder should read it, because
part of it stated an employee did not have to take it off
company property. Snyder replied he knew about that, and
that "it was OK on your time but you cannot have it on
company property during company worktime." Snyder
again told him to take it outside , saying that if he did not,
Snyder would have to ring him out. Boggs told him to "go
ahead and punch the s-o-b out," so Snyder punched out his
timecard about 2 a .m. and Boggs gathered his clothing and
left the building. As Snyder walked out with him to the
parking lot, Boggs asked if he was discharged, and Snyder
said he was, as far as Snyder was concerned . Boggs said he
did not think it was fair, that if Snyder had looked at the
handbill he would see; Boggs had a right to keep the
handbill in the plant. Snyder replied that Boggs could
return that day and talk to President Forrest Hyland, Jr.
Snyder reported the incident to Hyland that night or early
Monday.
After he finished hi shift on Monday morning, Boggs
talked to Hyland, who asked him what had happened.
Boggs explained the incident , saying he had a right to
solicit in the plant for the Union, according to the leaflet.
Hyland agreed, saying he would defend his right to
organize and belong to a union , and that the Company
could not interfere with that right, but that it had a very
simple rule that workers could not solicit for the Union on
worktime , because worktime was for work, that was what
employees were paid for, but they could solicit in the plant
on their own time, like at lunch and break times. He added
that he did have a right to run his plant and get the work
done, and if anyone did not measure up on his work, he
had a right to let them go. Boggs asked if he could go back
to work. Hyland said he could, that he deserved the benefit
of the doubt. In discussion of the Union, Hyland said he
felt that each plant had to be considered individually in
deciding whether a union was good for it, and he did not
think it was right for his plant, and that the Union would
not get into it, because unions were for "bad employers,"
and he was a good employer and felt his employees would
vote against the Union . Boggs was immediately reinstated
to his job, with full backpay. After this incident , Boggs saw
union literature in the plant and also talked to workers
about the Union during his break periods.3 There is no
proof indicating Respondent's attitude toward employees'
distribution of union literature or union solicitation in the
plant in 1973, other than the Boggs incident and its
treatment of Barnett which is considered below.
The Performance and Discharge of Barnett
Since Respondent claims one of the main reasons for
discharge of Barnett was his poor work while a probation-
er, a preliminary description of his duties is proper. As sole
Boggs, Snyder and Hyland, Jr. Testimony of any of these witnesses in
conflict therewith is not credited.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspector on third shift, Barnett was required to inspect all
parts made by automatic screw machines, of which 17 to
22 usually on his shift operated, and determine if the form
and dimensions of the parts were correct. Inspection
consisted of examination of random samples from each
pan or lot of parts made by each machine, the exact
number inspected depending generally on the size of the
part and number contained in each pan or lot. Normally he
checked parts from each machine once or twice a night. If
he found only one or two parts bad in a lot, he would
discard them and tell the operator what was wrong so that
he could adjust his machine and continue production. If he
found a substantial number of bad parts, he would tell the
operator to shut down and adjust his machine, and would
then inspect parts again after the adjustment, usually tying
up the bad parts in a bag with a red tag on them to alert the
day inspector and Poft to examine the whole lot; if most of
the run was bad he would have the operator shut down the
machine for the rest of the shift. If a lot of parts measured
within allowable tolerances, he would put a yellow tag on
the lot for attention of the day inspector, who usually
okayed his inspection pro forma. When inspected parts are
found only slightly off specification (called "on the high
limit") he merely tells the operator to correct the error and
continue production. In all instances, he records the results
of each inspection for each machine on an inspection card
for the attention of the day inspector and Poft. The day
inspector rechecks all lots which have red tags so that
Respondent can determine whether they can be reworked
or must be scrapped. If third shift production which is bad
has been passed by Barnett, and errors are caught by the
day inspector, he puts his own red tag on the worksheet
for that lot, for Barnett's attention when he comes to work
that night.'
On the night of June 7, Barnett passed a run of
aluminum hex nuts made on machine 12 by operator
Harry Bucholz, and a run of No. 48 hubs (a repeat of
previous orders for the same part) on machine 14 by
operator Ronald Flagg. When day inspector Lambert
checked both runs on the mori1Ing of the 8th, he found ali
of four pans of hex nuts oversize. He also found six pans of
the No. 48 hub off in one dimension, so that these parts
could not seat properly when screwed into another part.
He noted the errors on the inspection sheet, red-tagged
both lots, and told Poft about them. The hex nuts were so
bad they had to be scrapped. The hubs were later reworked
and sold to the customer who accepted them "on
deviation." Poft reported the errors to William Barnes,
superintendent of screw machine operations. That night
Barnes came in on third shift and personally reprimanded
both operators for running bad parts. He then reprimand-
ed Barnett for poor inspection of the two parts in question.
Barnett's reply was that he could not possibly check these
machines every 15 minutes, or watch each one all night, as
he had from 17 to 22 to inspect each night . Barnes replied
4 These facts are found from a composite of credible testimony of
Barnett, Poft, and Barnes Testimony of any of these witnesses in conflict
therewith is not credited
5 I find this incident from credible testimony of Snyder, Barnes , Poft and
documentary proof, as corroborated in part by admissions of Barnett
Testimony of Barnett in conflict therewith is not credited, as he was
significantly vague about many details of this incident
that the operators were at fault in running bad parts, but
Barnett should have caught the errors. Barnett got angry,
raising his voice in talking to Barnes , accused him of trying
to tell him he did not know how to do his job. Barnes
replied that any inspector who let bad parts get by as he
did was doing a bad inspection job, just as he told the
operators they were doing a bad production job. Barnett
angrily said he would go home. Barnes told him that was
his decision. Barnett asked Snyder if he should go home,
and Snyder said he would rather he stayed at work, as he
needed him for inspection. Barnett did not go home but
continued work.5
Consistent with Poft's initial remarks to Barnett about
observation of his work, his supervisor, Snyder, watched
his performance rather often on third shifts Barnett's
inspection duties required him to move constantly from
one machine to another in a 100-foot long area, and in
course of inspection he often talked to operators about the
quality of their production. Hence, Snyder often saw him
moving in the area and talking to operators. In the early
part of June, Snyder saw Barnett talking to one employee
early in the shift in a part of the plant where no machines
were running and no inspection was necessary, and
reprimanded him for being away from his work. A week or
so later, Snyder again warned Barnett about spending too
much time talking to operators, after he observed him
talking about 45 minutes to one, and about 30 minutes to
another. There was no trouble with parts production on
either machine at the time, and Barnett 's inspection work
and talk to operators about errors did not require
discussions of such length. Snyder reported both instances
to Barnes. About a week before July 12, Snyder again
found Barnett talking to a worker running a machine in the
general shop area, which was outside the screw machine
area. At the time Barnett was on his lunch hour (about 4
a.m.), but the other employee was working. Snyder asked
Barnett why he was in that area, and Barnett replied they
were talking about baseball. Snyder ordered him to get out
of the area and stop bothering another employee while he
worked. Barnett went back to his own area to finish his
meal. During this period, Barnett once accused Snyder of
following him everywhere he went in the plant, and asked
if it was because the Union was trying to get into the shop,
and he thoug.°' Barnett had some part in it. Snyder replied
"the Union will do you like it did me once; I tried to
organize a union in here myself, and when the time comes
they will let you down." 7
In the third week in June, Barnett learned there was
union literature on employees' cars in the parking lot, so on
his break he checked his own car but found no literature
on it or other cars. As another worker said Snyder had
taken the papers from the cars, he sought out Snyder and
asked if he had taken the literature. Snyder asked what
literature. Barnett said he would appreciate it if Snyder
would put it back, as Barnett wanted to read it. Snyder
6 Poft normally worked the day shift, but he kept constant records of
Barnett's performance on which he could base his decision at end of the
probation period whether to retain him or let him go. Since there is no proof
that he personally observed Barnett on third shift himself, it is inferable and
logical that he would rely largely on observations and reports of Snyder.
T There had been two prior unsuccessful attempts by a union to organize
the shop in 1964 and 1966.
HYLAND MACHINE CO. 1069
replied: "If there was union literature on your car it will be
there tomorrow morning when you get off work."
On July 12 Barnett attended a union meeting at which he
received union pencils, pencil holders, and buttons for
distribution. When he reported for work that night, he
wore a union button on his shirt. He clocked in at 10:58
p.m., and then walked about 150 feet through the shop to
the shipping area to make a phone call. Just before the shift
bell rang at I1 p.m., Snyder was talking to second shift
Foreman Daniel Murphy near screw machine 11, and saw
a box of union buttons and literature at that machine. On
query Murphy said they were not his, and he did not know
whose they were. Snyder said they did not belong on
company property, so dropped them in a nearby trash can.
Snyder then began assigning jobs to workers as they
clocked in, and about 11:05 p.m. he saw Barnett talking to
another worker in the tool grinding area. He then saw
Barnett come up to machine 11, look around, take the
union literature out of the trash can, and walk away. After
he finished his assignments, Snyder looked for Barnett to
instruct him on inspection of a new hub part just starting in
production, because it had an unusual shape and size, with
special cuttings. About 11:15 p.m., Snyder finally found
Barnett talking on the phone in the shipping room. Snyder
told him that when he was through, he wanted to see him
at the rear of machine 12. Barnett came to him shortly and
Snyder explained the inspection on the new part and then
walked away. As Barnett walked toward his work station,
he passed employee Robert Henn who asked him for a
union button like Barnett wore. Barnett said this was the
only one he had, took it off and gave it to Henn. Snyder
noticed him talking to and passing the button to Henn. As
Barnett walked away from Henn, Snyder walked after him,
and as he passed Henn, asked the latter if Barnett had
given him union material. Henn said he had. Snyder about
11:20 p.m. then walked over to Barnett who was talking to
employee Ronald Flagg at machine 9, and told Barnett
that if he did not get back to work and stop soliciting for
the Union on company time, he would have to send him
home. Barnett replied that he was not soliciting, and knew
his rights. Snyder repeated the order and warned he would
"fire your "M-F- ass." Barnett replied loudly "I was not
giving out union literature, but just gave Henn my union
button," that Henn had asked for it, and "go ahead and
fire my "M-F- ass." Snyder replied that he would do
that, would punch his card out. He removed Barnett's card
from the timeclock rack about 11:25 p.m. and went into
the office to call President Hyland. Barnett followed him
in. When Hyland's phone did not answer, Snyder walked
out of the office, told Barnett to wait outside, and went
back to the office and called Barnes, to whom he reported
the incident, saying he intended to fire Barnett. Barnes
agreed with this decision. Snyder then came out, told
Barnett he was punching him out, and he should go home.
He punched Barnett out at 11:29 p.m. As he did so,
Barnett told him to be sure he knew what he was doing,
that he was making a mistake, and that Barnett would
"have your job." Snyder told him he could come in and
talk to President Hyland the next morning about it.
Barnett asked if he could use the phone, and Snyder told
him to use the one in the grinding room. Shortly after
Barnett left the plant, and Snyder called Hyland and
reported the whole incident to him.
When Barnett came to Hyland's office on the morning of
the 13th, as Poft suggested8 Hyland asked what had
occurred the night before, and Barnett began to relate his
version of the discharge and the events leading to it.
Hyland interrupted him and excused himself to talk to
Barnes on the phone and find out what he had learned
about the discharge. He then asked Poft to come to the
office, telling Barnett he had called for Poft because he was
quality control supervisor and also an inspector. After Poft
came in, Barnett related the whole incident, indicating he
had had a rather loud argument with Snyder just before his
discharge. He asked Hyland if he was discharged for union
activity, indicating he felt it was because he had given the
union button to Henn. He also charged that Snyder had
been following him around the shop, and ever since he
came on third shift, he and Snyder did not "hit it off."
Hyland said Snyder reported that Barnett had been talking
too much with other workers, that he had reports Barnett's
work was not satisfactory, and that he had been insubordi-
nate to Snyder the night before. He indicated that the
delivery of the button to Henn was "what brought it all
on," but that it was not the only reason for discharge,
citing his unsatisfactory work and alleged insubordination
to Snyder.
Hyland then asked Poft to explain the quality problems
with Barnett's inspection. Poft referred to daily records he
had kept on Barnett's performance, citing specifically the
instances of the two defective parts passed by him as found
above. He also explained to Barnett other instances of poor
work, and also some reported instances of long unnecessar-
y discussion with other workers. After hearing these
reports, Hyland told Barnett that he concluded this
conduct was the reason why Barnett and Snyder had the
argument the night before, and that he had decided to
uphold the discharge. Barnett argued about the reasons for
discharge given, indicating he felt it was for union
solicitation. He reminded Hyland he was a vice president
of District 13 of the Union, and "I have the Union behind
me on this, and I have taken some labor courses, and f
believe I am right, and I will see you in court." Hyland
replied that was his right as an American citizen, and
Hyland had no reason to "block" that right.
Barnett asked Hyland for a payoff slip stating the reason
for discharge, as he felt he had been treated unfairly and
was going to the Board about it. Hyland told him to come
back at 3 p.m. for it, that it would take some time to get it
ready. When Barnett returned that afternoon, Hyland told
him he was not discriminating against him, but it was not
company policy to give payoff slips, that Respondent had
never done that before, that their only records on the
separation would be his final paycheck and reasons for
discharge stated in his file, which was available to the state
unemployment compensation agency, and Respondent
would also state the reasons on any forms requested by
that agency. He did say the reasons noted in his file would
8 The interview with Hyland was pursuant to company policy which
gave any discharged employee the right of appeal to either Hyland or
Superintendent Barnes.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be that he was a probationary worker whose work was not
up to standards, and that he had been insubordinate to
Snyder. Barnett then left the plant, and has not been
reinstated .9
Arguments of the Parties and Conclusions Thereon
General Counsel contends that the suspension of Boggs
and discharge of Barnett was due to their actual or
suspected union activity, and both actions stemmed from
Respondent's maintenance and enforcement of an unlaw-
ful broad no-solicitation rule in the plant which was in
itself violative of Section 8(a)(l) of the Act. The rule in
question is rule E, 6 in the employees' handbook of plant
rules which reads as follows:
Devote your efforts here only to company business
-personal work or soliciting the help of other
employees in the performing of personal work is
banned.
The record shows that: This rule has been in existence
since 1964 and is brought to the attention of employees
when a copy of the plant rules is given to them when hired.
The rule has never been applied to union solicitation in the
plant, but was instituted and designed only to prevent
workers from using company machines and worktime to
make personal items or small parts for personal equipment.
During Hyland Junior's 9 years of employment with
Respondent, Respondent has never found it necessary to
enforce this rule. Hyland, Junior, also testified without
contradiction that: Respondent presently has no rule
prohibiting union solicitation in the plant. During union
campaigns in 1964 and 1966, however, it posted a rule
prohibiting union solicitation on worktime, but when the
1973 campaign began, it did not post or announce a similar
rule although it had advice of counsel that union
solicitation could not take place on worktime, on the
theory that "work time is for work," but only on
employees' own time, such as lunchtime, break periods,
and before and after work hours, and company counsel
actually instructed supervisors to this effect.
The wording of rule E, 6 relating only to "personal
work" and Hyland's testimony about its purpose afford
some support for the claim that it was not intended or
reasonably to be construed to prohibit union solicitation in
the plant at times other than worktime. Recognizing this,
General Counsel argues that since the rule in terms does
not limit its operation to "working time in work areas," it is
vague and ambiguous, such ambiguity should be resolved
against Respondent, the author of the rule, and hence it
must be considered reasonably susceptible of interpreta-
tion by employees as prohibiting solicitation during
nonworking hours in nonworking areas , citing N.LR.B. v.
Harold Miller, d/b/a Miller Charles & Co., 341 F.2d 870,
873, 874 (C.A. 2, 1965), and The J.L Hudson Company, 198
NLRB No. 19. In this connection, I note that the rule in
terms does not define "personal work ," nor distinguish
between "personal work" on worktime as against nonwork-
time, nor does it limit its prohibition to the use of company
machinery. Hence, it can reasonably be construed to apply
to all personal activity at any time in the plant, whether it
involves use of company machinery or tools or otherwise.
An inference that Respondent intended to control all
employee personal activity in the plant at any time can also
be drawn from its written rule E, 18 which requires
employees to "obtain authorization for solicitation of
funds or contribution on company premises." J.R. Simplot
Company Food Processing Division, 137 NLRB 1552, 1553.
Hence Respondent must prove words or conduct which
would prevent any inference by employees that rule E, 6
applied to union solicitation, and specifically that the
words "company business" and "personal work" did not
apply to such solicitation. Leaving aside Hyland's subjec-
tive testimony that the rule was never intended to cover
union solicitation (since there is no proof that this
limitation of the rule was made known orally or in writing
to employees), the admitted absence of actual application
or enforcement of the rule does not overcome the
presumption of invalidity. The specific publication of a
rule against union solicitation on worktime, aside from rule
E, 6 in 1964 and 1966, was some indirect notice to
employees at that time that rule E, 6 did not cover such
activity, and since it appears about 75 to 80 percent of the
workers then employed were still at the plant in 1973, when
a similar rule was not posted, it is a permissible inference
that employees generally were aware that Respondent was
not prohibiting union solicitation at any time or place
during the 1973 campaign. The same inference is supported
by Boggs' testimony that, Respondent at his reinstatement
outlined to him a presumably valid no-solicitation policy,
and thereafter he saw union material in the plant and
talked about the Union to other employees as he pleased,
without hindrance.
However, I am not satisfied that Hyland's prompt but
private corrective action in Bogg's case was sufficient to
overcome any coercive effect upon employees arising from
the open suspension of Boggs by Snyder in the plant, or
any restraining effect which the broad terms of rule E, 6
might have on workers. It is clear that Snyder suspended
Boggs for mere possession , without more, of union
literature in the plant, which is an instant application of a
far more restrictive rule than Hyland announced to Boggs,
stated in his testimony, or had ever applied in the plant.10
Respondent argues that Boggs was disciplined for insubor-
dination in failing to obey an order of Snyder to remove
the literature physically from the plant, but it is obvious
that, if union solicitation in the plant on employees' own
time was permitted , as Respondent now claims , suspension
of an employee for mere possession of union literature in
the plant, which is a necessary prerequisite to any
permitted distribution thereof on nonworking time, is a
bald negation of the claimed permission of union solicita-
tion on nonworktime, hence is patently destructive of that
9 The above facts are found from credited testimony of Hyland, Snyder, and immunities in the plant as a union member and official.
and Poft, as corroborated in part by admissions of Barnett Testimony of '° Respondent's only printed rule bearing on personal possessions in the
the latter in conflict therewith is not credited, in large part because of his plant is rule C, 4, which only requires employees to "keep to a minimum the
self-contradictions on the events of the 12th and other facts and other carrying in or out of the plant of personal packages, parcels, boxes. etc." See
admissions noted hereafter which indicate that he felt he had special rights also references thereto in C, I and 3.
HYLAND MACHINE CO.
protected right. This makes the claim of insubordination
for failure to obey a patently illegal order without merit.
Hence , I must find that, while Hyland promptly made
amends for Snyder's unlawful action, the reversal did not
serve to dissipate any coercive effect of the suspension on
other employees, since there is no proof that Hyland gave
his corrective action the same publicity that the suspension
received. Hence, I must find that the suspension of Boggs
amounted to an instant application of an unlawfully broad
rule prohibiting actual possession of union material in the
plant, in violation of Section 8(a)(1) of the Act,ii and that
the defense of insubordination is without merit. Since
Hyland did not publicize his private announcement to
Boggs of a presumably valid rule permitting union
solicitation in the plant except on worktime, his corrective
action did not serve to overcome any presumption of
invalidity attaching to the broad but ambiguous rule E, 6.
In this connection, I also note an absence of proof that,
when newly hired employees received the rule book, the
purpose and scope of rule E, 6 was ever explained to them,
so as to make it clear that it did not apply to union
solicitation on nonworking time. Lacking such explana-
tion , the ambiguous language might be interpreted by
workers in such a way as to cause them to refrain from
exercising their statutory rights, hence the rule is invalid
even if Respondent intended or interpreted it privately
otherwise. See Solo Cup Company, 144 NLRB 1481, 1482.
General Counsel also argues that the discharge of
Barnett demonstrates a continued enforcement of an
invalid no-solicitation rule, arguing that he was never
apprised of any rule or practice on that subject other than
rule E, 6, and that Barnett, like Boggs, was disciplined for
mere possession of union literature and refusal of orders to
remove it from work areas. However, it is clear that
Barnett did openly distribute union material in the plant
on worktime, and this would be a clear violation of a valid
rule that "worktime is for work," if Respondent actually
had or enforced one. But I have found that Respondent
had no rule directly dealing with this subject, and the
ambiguous rule E, 6 was such that it could reasonably be
construed as prohibiting union activity even on nonwork-
ing time , absent any effective explanation to employees
which would publicly limit its effect to worktime only and
exclude union solicitation from its scope, as Respondent
now contends.
Hyland's opinions stated to Boggs at his reinstatement
about the undesirability of a union in the plant, coming
right after Respondent's unlawful suspension of Boggs,
show that Respondent was averse to unions and inclined to
take affirmative steps to prevent workers from assisting the
11 Even if it were assumed that Snyder was only trying to prevent union
activity on company time , as Hyland indicated to Boggs when reinstating
him, there is no proof that the mere presence of the union material in Boggs'
lunchbox interfered in any way with plant production or discipline, hence
the instant application of the oral rule, even if valid, would appear to have
no other purpose than to impede workers' possible union activity See Dixie
Wire Corporation, 182 NLRB 211
12 Credible testimony of company witnesses , documentary proof, and
admissions of Barnett, tend to establish that, shortly after Barnett began
work by himself on third shift, he began to spend time talking to other
workers for periods longer than necessary for his inspection work, his own
inspections became spotty, with several glaring instances of passage of
defective parts which led to reprimands by the plant superintendent, all of
1071
Union's campaign to organize the plant. In light of this
attitude and unlawful action, and Respondent' s signal
failure to overcome its effect by publication of a valid no-
solicitation rule based on the theory of "working time for
work" I must conclude that General Counsel has presented
a substantial prima facie case of discrimination against
Barnett, in that (1) Snyder was closely watching the work
and movements of Barnett, a known union official, (2) saw
him give union material on worktime to another worker,
(3) ordered him to stop on pain of dismissal, (4) dismissed
him after an angry argument about his right to do that, and
(5) the dismissal was upheld by Hyland, who admitted his
union activity "brought it on." While Snyder's action on its
face appeared to be an application of a valid unwritten rule
that "worktime is for work," and Barnett 's angry and
vulgar response was a form of defiant insubordination
openly in the plant, which would ordinarily justify instant
discharge, Hyland's confirmation of the discharge, while at
the same time admitting that Barnett 's union activity
"brought it on," affords strong proof that the passing of the
union button to Henn was the action which motivated
Snyder's instant order and led to the argument and
summary discharge. If the record established that Respon-
dent had a well-publicized and valid no- solicitation rule
which limited the prohibition of union solicitation to
employees' working time, and working areas, Snyder's
order to stop the solicitation would be valid, whether
standing on its own or considered as the last straw in a
lengthening record of poor performance by Barnett
culminating in his rank insubordination toward Snyder.12
However, while Respondent argues that its only practice
was to require that employees use working time for work,
that practice is not in any written rule, and had never been
made clear to the workforce, either in writing or orally, in
1973. While Respondent had posted notices to that effect
in union campaigns, 7 and 9 years before, it failed to
publicize a similar rule in 1973. Hyland testified that he did
not do so because Respondent felt that all workers knew
what the rule was, and only about 20 to 25 percent of the
workforce was new since 1966. This is a weak justification
for failure to clarify an ambiguous situation by refreshing
employees' minds on this subject, after a lapse of 7 years,
by the simple expedient of posting a new valid no-
solicitation notice, particularly where Hyland admits (1) he
well knew the basic rule that "working time is for work"
from his experience in the two past campaigns and (2)
Respondent's counsel specifically advised supervisors in
1973 that employees could talk or solicit for the Union on
their own time, as at lunch, break times, and before and
after work, but could not do it on worktime. There is no
which were recorded by Snyder as part of his observation of a probationary
employee and led him to conclude about the time of the discharge that he
would be compelled to recommend dismissal of Barnett when his 90-day
probation was completed In addition, Barnett's constant reminders to
management of his union membership , alleged knowledge of his rights as a
union member , and his defiant remarks both to Snyder and Hyland on July
12 and 13 premised on his union membership raises a strong inference that
he considered his position as a union member and official , in a nonunion
plant , gave him some special status and perhaps immunities from the
ordinary rules of discipline applying to other workers Of course, under
settled law he has no such special rights or immunities from discipline.
N L R B v Local 1229, International Brotherhood of Electrical Workers,
[Jefferson Standard Broadcasting Co 1346 U S 464.476.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof that supervisors relayed this advice to employees,
formally or informally. Barnett testified credibly, with
some support from Hyland and no denial by Poft, that: He
never received a copy of the rule book when hired, and no
official had ever told him about a rule prohibiting union
solicitation or distribution of union material. In his
discharge interview with Hyland, the latter asked him if he
had not read the plant rules, he replied he never received a
copy, and when Hyland asked Poft about that, the latter
replied that when Barnett was hired the supply of rule
books was exhausted and none had been procured since. It
is significant that Hyland did not explain what rule he
referred to, point it out to Barnett , or explain how he
violated it, hence it is inferable that he had in mind rules E,
6 or E, 18, the only ones in the rule book which appear to
deal in any way with employees' personal activities in the
plant. As noted above, both rules, singly or together, tend
to negate the contention that Respondent maintained or
enforced a valid no-solicitation rule.13 Hence, this testimo-
ny further supports the conclusion that in 1973 the
employees were never effectively advised of Respondent's
professed rule or practice prohibiting union solicitation
only on worktime, and that during the 1973 campaign they
had no guidelines to follow in the union activity in the
plant, except the ambiguous rule E, 6. It follows that when
Respondent suddenly applied to Union Official Barnett
during the campaign a new oral rule based on the theory of
"worktime is for work," the conclusion is inescapable that
it did so for the purpose of restraining the union activity of
employees, and not for any legitimate purpose of maintain-
ing production or discipline.14 I must conclude that,
although there is cogent proof that Barnett had accumulat-
ed a record of poor performance during his work on third
shift in the latter portion of his 90-day probation period,
and that he had a defiant, insubordinate and disruptive
confrontation with Snyder on July 12 dust before his final
discharge, the event which in part triggered his discharge
was his single distribution of union material to a worker on
July 12, without apparent disruption of his own work or
that of others, which was not in violation of any known
and effective rule prohibiting union solicitation on work-
time, and that Respondent seized upon his conduct and
applied an ostensibly legitimate no-solicitation rule to get
rid of a known union adherent, under the pretext of firing
him for poor performance during his probationary period.
Hence, his discharge was discriminatory and in violation of
Section 8(a)(3) and (1) of the Act.is
In support of its defense, Respondent points to rule E, 18
of its plant rules, providing that an employee must obtain
permission "for solicitation of funds or contributions on
company premises," to prove that it exercised control over
only charitable and like solicitations on company time and
property, but not over union solicitations, and that by
process of exclusion this rule did not apply to union
13 Contrary to his open discussion of the obvious "worktime is for work"
policy with Boggs, Hyland did not expand on his reference to Snyder's
report that Barnett bad been talking too much to other workers, by referring
to sec A of the plant rules, detailing in various ways the requirement that
workers were expected to stay on the job at all times during the scheduled
working day
14 There is no proof that Barnett's single delivery of a union button to
Henn affected that employee's production, or delayed Barnett in the
solicitation on the employees' own time. However, this rule
tends to prove the opposite, for it makes it clear that
Respondent was trying thereby to control personal
activities of employees on nonworktime as well as
worktime, so that existence of the rule tends to show a
desire and policy to control employees' actions at all times
in the plant. As there is nothing in the rule or otherwise to
indicate that it specifically excluded union solicitations on
worktime or company premises, that rule, like rule E, 6 is
also ambiguous and would support an inference that
Respondent was not limiting its control of actions of
employees to worktime and working areas, just as much as
it warrants an inference otherwise . In its ambiguity it ranks
alongside rule E, 6, and does not support Respondent's
defense of the latter rule, or justify the discharge of
Barnett.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's opera-
tions 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.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and also take certain
affirmative action which is necessary to effectuate the
policies of the Act. Since the unlawful conduct involved
discriminatory suspension and discharge of employees,
which strike at the fundamental rights of employees under
the Act, a broad order is required.
As Respondent unlawfully discharged Jim L. Barnett for
his union activity, and failed to reinstate him, I shall
recommend that it offer him immediate and full reinstate-
ment in the usual manner, with backpay from the date of
the unlawful discharge to the date of a proper offer of
reinstatement, the amount to be computed under the
formula set forth in F. W. Woolworth Company, 90 NLRB
289, with proper interest added, Isis Plumbing & Heating
Co., 138 NLRB 516.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act.
2. By its suspension of Willard Boggs , and discharge
and refusal to reinstate Jim L. Barnett, because they
accomplishment of his own work that night Compare Veeder-Root
Company, 192 NLRB 973
15 Ward Mfg Co, 152 NLRB 1270, Quality Production Co, 162 NLRB
1459, Dixie Wire Corp, 182 NLRB 211,212, Werthan Bag Corp, 167 NLRB
11, 27, C P Lesh Paper Co, 187 NLRB 359, 363: and compare Veeder-Root
Company, 192 NLRB 973, where republication of a valid no-solicitation rule
at the start of a union campaign was considered a significant factor by the
Board in finding that republication a valid act.
HYLAND MACHINE CO. 1073
engaged in activities on behalf of the above-named Union,
Respondent has discriminated against employees in regard
to their hire and tenure of employment, in violation of
Section 8(a)(3) of the Act.
3. By the above conduct, and by enforcing and
applying its plant rules in a manner which tends to prohibit
employees from engaging in union talk , solicitation or
other concerted activity protected by the Act on nonwork-
time in nonworking areas of its plant, and by instituting,
maintaining and enforcing a plant rule which prohibits
union talk or solicitation or other protected concerted
activity , for the purpose of retaliating against employees
for, and discouraging them from , engaging in such activity
on nonworking time and in nonworking areas of its plant,
and to impede union organization of its employees,
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
4. By the above conduct Respondent has engaged in
and is engaging in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 16
Hyland Machine Company, of Dayton, Ohio, its officers,
agents, successors and assigns , shall:
1. Cease and desist from:
(a) Suspending, discharging, failing to reinstate, or in any
other manner discriminating against employees in regard
to their hire or tenure of employment or other terms and
conditions of employment, because they engaged in
activity on behalf of the above-named Union or any other
labor organization, or in other concerted activities for
purposes of collective bargaining or other mutual aid or
protection.
(b) Enforcing or applying its plant rules in a manner
which tends to prohibit employees from engaging in union
talk or solicitation or other concerted activity protected by
the Act on nonworktime in nonworking areas of its plant.
(c) Instituting , maintaining, and enforcing an otherwise
valid plant rule which prohibits union talk or solicitation or
other concerted activity protected by the Act, for the
purpose of retaliating against employees for, or discourag-
ing them from, engaging in such activity on nonworktime
in nonworking areas of its plant, or to impede union
organization of its employees.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to Jim L. Barnett immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of
pay suffered by him as a result of Respondent 's discrimina-
tion against him, in the manner set forth in the Section
hereof entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board and its agents , for examination and copying, all
payroll records , social security records , timecards , person-
nel records and reports , and all other records relevant and
necessary to a determination of the right of reinstatement
and the amount of backpay due, as provided under the
terms of this recommended Order.
(c) Post at its Dayton , Ohio, office and place of business
copies of the attached notice marked "Appendix." 17
Copies of said notice , on forms provided by the Regional
Director for Region 9, shall , after being duly signed by
Respondent 's authorized representative , be posted by it
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
16 In the event no exceptions are filed as provided by 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
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend , discharge , fail to reinstate, or
in any other manner discriminate against our employ-
ees in regard to their hire , tenure of employment, or
other terms or conditions of employment, because they
have engaged in activity on behalf of International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization of our
employees , or in other concerted activities for purpose
of collective bargaining or other mutual aid or
protection.
WE WILL NOT enforce or apply our plant rules in a
manner which tends to prohibit employees from
engaging in union talk or solicitation or other concert-
ed activities protected by the Act on nonworktime in
nonworking areas of our plant, or to impede union
organization of our employees.
WE WILL NOT institute , maintain , or enforce an
otherwise valid plant rule which prohibits union talk or
solicitation or other concerted activity protected by the
Act, for the purpose of retaliating against our employ-
ees for, or discouraging them from , engaging in such
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity on nonworktime in nonworking areas of our
plant , or to impede union organization of our employ-
ees.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
WE WILL offer to Jim L . Barnett , immediate and full
reinstatement to his former or a substantially equiva-
lent position , without prejudice to seniority or other
rights and privileges previously enjoyed , and will make
him whole for any loss of pay he may have suffered by
reason of our discrimination against him.
HYLAND MACHINE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Federal Office Building , Room 2407 , Suite 3003 , 550 Main
Street , Cincinnati , Ohio 45202 , Telephone 513-684-3686.