National Southwire Aluminum

National Labor Relations Board - Board Decisions

Feb 22, 1980

247 N.L.R.B. 1315 (N.L.R.B. 1980)

NATIONAL SOUTHWIRE ALUMINUM
National Southwire Aluminum and United Steelwork-
ers of America, AFL-CIO. Case 9-CA-13131
February 22, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
TRUESDALE
On October 9, 1979, Administrative Law Judge Phil
W. Saunders 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
conclusions2 of the Administrative Law Judge, except
as noted, and to adopt his recommended Order.
The Administrative Law Judge found, inter alia,
that Respondent violated Section 8(a)(1) and (3) of the
Act when its supervisor, Burchfield, interrogated
employee and union activist Wendell Sandage regard-
ing his union activities and threatened him with loss of
job opportunities because of his activities. While we
adopt the Administrative Law Judge's finding that
Burchfield's remarks constituted a threat of retaliation
in violation of Section 8(a) (1) of the Act, examination
of the record fails to disclose that an interrogation also
occurred.
On or about July 24, 1978,' Burchfield approached
Sandage and asked if he was still interested in the
Dubai project. 4 When Sandage responded in the
affirmative, Burchfield tapped Sandage's union orga-
nizer button and stated "that there wouldn't be any of
that in Dubai." According to the record, Sandage
replied that "that was the way he felt about it," and he
did not think he had been hasty in his decision to
support a union, and he had "given the Company
seven years." Burchfield stated that Sandage would be
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. In.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
: The Administrative Law Judge found that Respondent unlawfully
prohibited the distribution of union literature in nonwork areas on nonwork-
time. In support of this finding, the Administrative Law Judge relied on
Supervisor Mosley's direction to employee and union supporter Bruce
Tongate on October 22 to clean the break area of litter and "get rid of the
union propaganda" and "clean up the union literature." To the extent that
this finding might imply that Respondent promulgated a no-distribution rule.
we find that such comments fall short of constituting a no-distribution rule.
247 NLRB No. 175
sorry a year after the union got in, and "that all the
union wanted was our money," and that it would
disrupt the family atmosphere and interrupt the
normal workflow. Burchfield then added that Sandage
"had always been a good worker and that they
[Respondent] were just sorry to see him take this route
to rely on the union." Sandage testified that Burch-
field did not ask him any questions concerning the
Union or employees' efforts in support thereof.
Examination of the above conversation convinces us
that the Administrative Law Judge was correct in
concluding that Burchfield's comments indicated that
Sandage's union activities would have a negative effect
on his chances of being assigned to the Dubai project,
and hence was a threat of retaliation. However,
contrary to the Administrative Law Judge, we find
that those same statements fail to establish that
Burchfield was attempting to elicit information re-
garding the union activities or sympathies of Sandage
and/or his fellow employees. Moreover, we note that
by wearing a union button Sandage had publicized his
union sentiments and thus had made any inquiry in
this regard unnecessary. Accordingly, we shall not
adopt the Administrative Law Judge's finding that
Burchfield interrogated Sandage.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, National Southwire
Aluminum, Hawesville, Kentucky, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Threatening employees with loss of job oppor-
tunities because of their union sympathies."
2. Substitute the following for paragraph l(c):
"(c) Unlawfully interfering with the employees'
right to distribute union literature in nonwork areas
on nonworktime."
There is no evidence that such a rule was promulgated and announced nor
were employees individually notified that such distributions were prohibited.
This notwithstanding. we find that Mosley's statements tended to interfere
with Tongate and other employees in their Sec. 7 right to distribute union
literature, and, therefore. violated Sec. 8(a) (1) of the Act.
In passing. Member Truesdale notes that he did not participate in Bellinger
Shipyards. Inc.. 227 NLRB 620 (1976), which the Administrative Law Judge
discussed at some length here. Member Truesdale agrees with the Administra-
tive Law Judge that Bellinger is distinguishable on its facts and. in addition.
finds it unnecessary to pass on the question whether that case was correctly
decided.-
' All dates herein refer to 1978.
· Dubai is a country located in the United Arab emlirates and was the
location for a construction project in which Respondent participated as a
subcontractor.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
WE WILL NOT threaten employees with loss of
job opportunities because of their union sympa-
thies.
WE WILL NOT threaten employees with dis-
charges because of union stickers on plant equip-
ment or mules.
WE WILL NOT unlawfully interfere with our
employees' right to distribute union literature in
nonwork areas on nonworktime.
WE WILL NOT maintain an unlawful no-solici-
tation rule prohibiting employee verbal solicita-
tion in work areas during nonworktime, and WE
WILL make clear out present policy regarding
this matter.
WE WILL NOT assign employees to more
menial and less desirable job tasks because of
their union activities and sympathies.
WE WILL NOT otherwise discriminate against
employees because of their union activities.
WE WILL NOT discourage membership in the
Union, or any other labor organization, by
discriminating against employees in regard to
their hire and tenure of employment or any terms
or conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of the
Act.
WE WILL give affirmative assurances to Martin
Howard and Bruce Tongate that they will only be
required to perform the normal and usual duties
of employees in their classification, and that no
less desirable job tasks, such as cleaning the
breakroom, will be assigned to them.
NATIONAL SOUTHWIRE ALUMINUM
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on
charges filed on October 27 and on December 4, 1978, by
United Steelworkers of America, AFL-CIO, herein the
Union, a complaint was issued on December 7, 1978, against
National Southwire Aluminum Company, herein the Re-
spondent or Company, alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act. The General
Counsel and Respondent filed briefs in this matter.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in the
processing and manufacturing of aluminum at its Hawes-
ville, Kentucky, facility. During the past 12 months Respon-
dent purchased and received goods and materials valued in
excess of $50,000 which were shipped to its Hawesville,
Kentucky, facility directly from points outside the State of
Kentucky. Respondent is an employer within the meaning of
Section 2(2) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(6) and (7) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that agents of Respondent
unlawfully interrogated and threatened employees and
unlawfully prohibited the distribution of union literature in a
nonwork area, and in an amendment to the complaint dated
February 13, 1979, that the Respondent maintained in its
disciplinary policy an unlawful no-solicitation rule prohibit-
ing solicitation in work areas during nonworktime. It is
further alleged that on or about October 22, 1978, the
Company reassigned Martin Howard and Bruce Tongate to
more menial and less desirable job tasks.
Respondent operates an aluminum smelting facility in
Hawesville, Kentucky. The casthouse is a production area in
this facility where processed aluminum is molded into the
specified forms. The casthouse process basically requires the
pouring of molten metal into appropriate molds, and after
cooling and solidifying the products are then transported
and stored. The casting work involved in producing the
molded products is done by employees in the "metal
handler" classification. It appears that casting work is only
one of the several jobs and responsibilities of the metal
handlers in the casthouse, and when the fluctuating need for
products declines, or when other work in the casthouse takes
priority, metal handlers perform other related work as
directed by supervision.
During the past 9 years there have been almost continuous
efforts by labor organizations to organize Respondent's
employees, but thus far representation elections have failed
to result in certification of any bargaining representative.
The Company maintains that such organizing efforts have
become a commonly accepted aspect of work at Respon-
dent's facility, and further that the presence of union
1316
NATIONAL SOUTHWIRE ALUMINUM
literature in the breakroom was also a common occurrence,
and that Respondent has not interfered with any employee's
lawful right to distribute union literature nor taken any
disciplinary action against employees for exercising their
protected rights.
It appears from his record that the Union began the
organizing campaign here in question at Respondent's plant
in July 1978, and that several of the employees classified as
metal handlers, and who work in the casthouse, became
active in the campaign soon thereafter-signing cards,
wearing buttons, handing out literature, and volunteering to
serve as in-plant organizers. Both Martin Howard and Bruce
Tongate were metal handlers in the casthouse and partici-
pated in the organizational efforts of the Union, as indicated
above.
Respondent is presently helping as a consultant to a
construction firm in the building of an aluminum plant in
Dubai.' Respondent's Industrial Relations Manager David
Jean testified that from time to time several people in
management have been sent to Dubai in connection with this
project, but that no hourly employees have ever been sent.
Jean also stated that there is no collective bargaining of any
kind in the "skeikdom" of Dubai- the ruler of the country
"just doesn't allow that sort of thing."
Wendell Sandage, a metal handler employee who partici-
pated in the organizational drive and wore a union button,
testified that on or about July 24, 1978,2 Burchfield, engineer
coordinator for the Dubai project, asked him whether he was
still interested in going to Dubai. When he replied in the
affirmative, Burchfield then tapped the union organizer's
button Sandage was wearing and told him "that there
wouldn't be any of that in Dubai." Sandage stated that
thereafter Burchfield continued to interrogate him concern-
ing the Union, and told him that he would be sorry after the
Union got in, that all the Union wanted was their money,
and that it would break up the "family atmosphere" in the
plant.'
Counsel for Respondent argues that even assuming,
arguendo, Sandage's account of his conversation with
Supervisor Burchfield, it would still not be violative of the
Act, as the only question asked by Burchfield was whether
Sandage was interested in "going to Dubay [sic]," and that
under no circumstances was this interrogation of Sandage
related to his union sympathies. Moreover, contends the
Respondent, Burchfield's only other alleged comment was
the ambiguous reference that "there wouldn't be any of that
in Dubay [sic]," allegedly coupled with a gesture toward
Sandage's union button. The Company points out that the
labor policy in Dubai prohibits collective bargaining, and
Burchfield's remark, if made, would be no more than an
expression of that fact; and that even Sandage's account of
I Dubai is a country located in the United Arab Emirates and formed
separately from Saudi Arabia.
'All dates are 1978 unless stated otherwise.
' Sandage testified that he had attended a company meeting some time in
1978. where management had disclosed that some 300 people would get the
opportunity to go to Dubai.
' Supervisor Burchfield was asked on cross-examination if he had ever
informed any hourly employees of the possibility that they might be sent to
Dubai. He replied, "Rather than give anyone a blunt answer which I wasn't
really aware of, my standard answer usually was, there is a possibility that
some of the hourly people might be sent to Dubai."
the conversation shows it was nothing more than an open
discussion of the pros and cons of unionization.'
As has been pointed out, Wendell Sandage wore his union
button and openly participated in the organizational cam-
paign at Respondent's plant. Sandage was also interested in
going to Dubai, and Burchfield admitted in his sworn
affidavit that he knew of that interest and then acknowl-
edged such in his testimony on cross-examination. More-
over, Sandage attended the meeting held by Respondent for
employees interested in going to Dubai. During the incident
in question here-when Burchfield, after asking if Sandage
was interested in going to Dubai and after pointing to
Sandage's union button, told him "there would be none of
that in Dubai"-Sandage was obviously disappointed and,
as also indicated in his testimony, apparently felt that since
he was a supporter of the Union he would not be considered
by Respondent in his desire to be assigned to the project in
Dubai. Furthermore, Burchfield's statement was not an
isolated remark. He then inquired into Sandage's feelings for
the Union and expressed his disappointment in Sandage for
supporting the Union.' Under the circumstances prevailing
here, Burchfield's specific statements, as set forth above,
must be deemed an unlawful interrogation coupled with a
threat of loss of job opportunities because of union activities,
and I so find.
It is alleged that Respondent's Superintendent Spencer
Moore violated the Act by telling an employee that he and
others would be terminated if they put union stickers on the
equipment they were operating.
It appears from this record that on or about October I 1,
employee Wendell Sandage was driving a shop "mule"
(truck) for the day, but after he returned from dinner on the
date in question, he was informed by another employee that
there was a union sticker on the front of the mule. Sandage
had not been aware that the union sticker was there, but
very soon thereafter Superintendent Spencer Moore called
Sandage into his office. Sandage stated that Moore then
pointed his finger to the mule and told him to get out there
and take the sticker off "or he would take me [Sandage] out
the gate."' Sandage then informed Moore that he had not
known about the union sticker until shortly beforehand, but
Spencer Moore replied that he was not going to put up with
this sort of thing, and if he caught anyone putting stickers on
or operating the equipment with stickers on it, he would fire
them. Sandage then left the office and went outside with
Foreman Bill Moxley and tore the sticker off.
Superintendent Moore stated that it has been a long
standing policy of the Company not to allow stickers or
anything else on any of their mobile units, and he has
recently had a number of such units repainted. Moore
admitted telling Sandage that if he caught anyone defacing
company property, that person would "go to the gate."
' As the Board stated in Hanes Hosiery. Inc.. 219 NLRB 338 (1975):
We have long recognized that the test of interference, restraint, and
coercion under Section 8(aX)() of the Act does not turn on Respondent's
motive, courtesy, or gentleness, or on whether the coercion succeeded or
failed. The test is whether Respondent has engaged in conduct which
reasonably tends to interfere with the free exercise of employee rights
under the Act.
'Sandage testified that he had heard the term "out the gate" mentioned
before, and to him it means termination or discharge.
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore testified that the phrase "go to the gate" usually
means sending the employee home if he is involved in a
serious violation, but then bringing the person back the next
day to discuss the discipline.
Counsel for Respondent argues that the Company has
maintained and nondiscriminatorily enforced a policy
against defacing company property, and has previously
requested employees to remove insignia even where another
person may have performed the defacement. It is further
argued that whether or not Sandage placed the sticker on the
mule is irrelevant, as he was instructed to remove it pursuant
to a valid company policy, and the simple fact the defacing
insignia was a union sticker does not make its presence
sacrosanct, nor does it insulate Sandage from obeying a
lawful management instruction; and significantly no disci-
plinary action was taken against Sandage.
From all indications in this record, the Respondent does
not discharge or threaten employees with discharge for
defacing property, and especially under the circumstances
prevailing here. Superintendent Moore even admitted that
the phrase "go to the gate" means that the person involved is
brought back the next day to discuss whatever disciplinare is
to be invoked. However, in regards to the incident here in
question, Superintendent Moore, apparently very upset,
proceeded to threaten Sandage with discharge for the union
sticker on his mule, and when Sandage then protested that
he had not put the sticker on and had only just found out it
was there, Moore, nevertheless, made it clear that he
considered it Sandage's responsibility. As has been pointed
out, it is obvious that Moore overreacted when he saw
Sandage, a union supporter, driving the mule with a union
sticker on it, and he then threatened to send Sandage
"through the gate." Sandage took this to mean discharge,
and particularly so since later in their conversation Moore
specifically referred to firing anyone caught defacing compa-
ny property, as aforestated. Under the particular circum-
stances existing here, the statements made by Superinten-
dent Moore to Sandage relative to the union sticker on his
mobile unit must be deemed as a threat of discharge because
of his union activity and I so find.'
It is alleged that on October 22 Respondent further
violated the Act by unlawfully prohibiting the distribution of
union literature in a nonwork area of the plant. This record
shows that the area in question was the break or lunch and
dinner area of the plant. No work transpired there. On
October 22, however, the Respondent insisted that union
literature in this area be thrown away.
There is testimony in this record to the effect that on or
about September 15, Respondent's Executive Vice President
Chandler toured the plant's casthouse and expressed con-
cern about the poor condition of the breakroom, and in
response Superintendent Moore instructed the foremen to
make sure the breakroom was kept clean. There is also an
' The Respondent also introduced testimony through Moore to the effect
that management has had other instances where people have been asked to
remove writings or slogans on equipment, and mentioned circumstances
involving a Ronnie Brown who apparently was warned for posting religious
notices in the work area. However, as pointed out, Brown's case is clearly
distinguishable in several ways. The warnings given to Brown were repeated
on several occasions before he received a written reprimanded. Moreover.
there is testimony that Brown readily admitted posting the religious notices.
There are also no indications that the warnings he received ever went so far as
to involve his discharge.
exhibit showing that Moore submitted a memorandum to his
superior on September 22 expressing his concern about the
janitorial services and suggesting alternatives for improving
such.,
Counsel for Respondent points out and argues that the
right to distribute union literature in nonworking areas in
not disputed, and that this record establishes that Respon-
dent has not prohibited any employee from exercising his
lawful right to do so, but that such right does not insulate or
protect such literature for all purposes and at all times; and
where the literature is unattended and constitutes litter in an
area where the employer has a legitimate interest in
maintaining clean conditions, then the removal of the
literature violates no employee rights and constitutes no
violation.
Respondent also introduced testimony through Foreman
Bill Moxley to the effect that on the afternoon of October 22
he observed the breakroom and there were paper cups,
confetti, and union literature scattered all over the tables and
floor, and he stated it was such a "mess" that he got Tony
Elder to clean it all up.' Moxley further testified that on two
occasions later in the day he again observed "stuff" scattered
all over the floor and on these occasions had to have it
cleaned up by Martin Howard and Bruce Tongate.
It is well established, of course, that absent special
circumstances, employees clearly have a right to distribute
union literature in a nonwork area on nonworktime. Re-
spondent has not shown any valid reasons why the union
handbills in the lunchroom were not allowed to stay, and
there is no evidence of any distribution in the work areas or
during the working time of the employees. Respondent
attempts to explain the cleaning of the breakroom by a new
policy regarding janitorial services instituted after a visit
from their executive vice president on September 15. As
pointed out, if this is the situation, it took Respondent until
October 22 to put its new policy into effect; and even
assuming poor janitor service was a legitimate problem,
Foreman Moxley was clearly more interested in getting rid
of the "little union handouts" than anything else. Bruce
Tongate gave reliable testimony to the effect that during his
work shift on October 22, Foreman Moxley instructed him
to go to the lunchroom and to "get rid of the union
propaganda"-"get rid of it." Moreover, when Tongate
arrived he found the lunchroom was "much cleaner" than it
normally was except for two or three small union handouts
on each table. Later in the work shift Foreman Moxley again
told Tongate to get into the lunchroom and clean up the
"union literature." Employee Martin Howard also gave
reliable testimony to the effect that he had seen union
literature on the lunchroom tables before, and stated that on
October 22 the breakroom was no "dirtier" than usual.
From the credited testimony in this record,
'" it is quite
obvious that management was only concerned with the
'See Resp. Exh. 4.
' Moxley testified that normally the janitors come around once during each
shift to clean the lunchroom or break area.
"' It should also be noted that the facts found herein are based on the record
as a whole and upon my observation of the witnesses. The credibility
resolutions herein have been derived from a review of the entire testimonial
record and exhibits with due regard for the logic of probability, the demeanor
of the witnesses, and the teaching of N.L.R.B. v. Walton Manufactaring
1318
NATIONAL SOUTHWIRE ALUMINUM
removal of union literature from the breakroom, a nonwork
area, and the instructions given on October 22 had very little
or nothing to do with its alleged new janitorial services.
Under the circumstances prevailing here, the employees had
a right to distribute union literature without interference in
the nonwork area of the plant, and in prohibiting them from
doing so the Respondent violated the Act.
It is further alleged that Respondent violated the Act in
distributing and maintaining in its disciplinary policy an
unlawful no-solicitation rule which prohibits employee
solicitaion in work areas during nonworktime:
MAJOR COMPANY WORK RULES (Requires Inci-
dent Report)
8. Solicitation in work areas.
There is no dispute between the parties regarding the
mailing of the Respondent's work rules to employees' homes
on or about June 21, 1976."
David Jean, Respondent's industrial relations manager
testified that the old work rule 8, prohibiting solicitation in
work areas, was never enforced, nor were any employees
ever disciplined for violating the rule. Jean further testified
that on November 22, 1978, and again on March 19, 1979,
new work rules were posted on all plant bulletin boards, and
that these rules became effective at the time of their posting
and superseded the old work rules and solicitation rule of
June 21, 1976, as aforestated.
Counsel for the Company argues that from the Respon-
dent's cover letter attached to General Counsel's Exhibit 2,
it is clear that the contents of this exhibit were implemented
to detail consistency in disciplinary progression, not substan-
tive rule revisions, and that testimony established there was
no intent on Respondent's part to promulgate a new no-
solicitation policy. Furthermore, argues Respondent, even
assuming that the rule in General Counsel's Exhibit 2 is
invalid, no remedial order is necessary; Respondent relies on
Bellinger Shipyards, Inc.. 227 NLRB 620 (1976), when the
Board had that where an employer rescinded an invalid rule
and implemented a valid one prior to issuance of the
complaint, a remedial order was unnecessary. Also in
situations where voluntary self-compliance is implemented
and no employee is adversely affected by the rescinded,
invalid policy, a Board remedy is unnecessary. Respondent
maintains that circumstances here fall squarely within
Bellinger holdings, as General Counsel's amendment to the
instant complaint alleging an invalid rule was issued Febru-
ary 13, 1979, and the original complaint was issued
December 7, 1978, but on November 22, 1978, Respondent
restated and posted its lawful rule, effectively rescinding the
June 21, 1976, rule. Respondent further points out that
during the pendency of the alleged invalid rule, it is
uncontradicted that no employees received any discipline for
violation. Therefore, concludes Respondent, assuming, ar-
guendo, a technical violation, no remedial order is warrant-
ed.
Company, 369 U.S. 404 (1962) As to those witnesses testifying in contradic-
tion to the findings herein, their testimony has been discredited, either as
having been in conflict with the testimony of credible witnesses or because it
was in and of itself incredible and unworthy of belief. All testimony has been
reviewed and weighed in the light of the entire record.
It is well-settled Board law that organizational rights of
employees permit their solicitation on nonworking time in
work areas. Thus, an employer, unlike cases of distribution
of literature, may not forbid oral union solictation in work
areas during nonworking time. However, the rule here in
question and contained in General Counsel's Exhibit 2 is
clearly too broad in its scope since it can reasonably be
foreseen to apply to employees' break and lunch periods
while in working areas, and thus it is presumptively invalid.
Nor has the Company met its burden of proof that the rule
was applied in a lawful manner, or more importantly, that
employees understood that the rule was limited in its scope
to working time. As has been pointed out, Respondent
mailed a copy of the work and solicitation rules to its
employees' homes in June 1976, which was to be part of a
revision of the existing handbook (Resp. Exh. I) which had
been promulgated in January 1975. Thus, the rules as
revised were represented by Respondent as work rules which
it considered so important that it gave every employee
individual notice of their existence by mailing each a copy.
Furthermore, Respondent, by it s own admission, made no
effort to correct or rescind the solicitation rule until
November 22, 1978, and even then, although a presumably
valid rule was posted, no reference was made to the fact that
the previous or old rule needed correction or was, in fact,
being rescinded. It is also noted that Respondent did not
mail the newest rule to each employee, but merely posted it
on the bulletin board, both in November 1978 and in March
1979, which postings employee Albert Roarke did not even
see.
In the final analysis, this record indicates that employees
were and are clearly confused as to Respondent's position on
solicitation. On cross-examination, Bruce Tongate stated
that the employees did not know what the Company's rule
was, and their only clarification came from the union
organizer. Another employee, Albert Roarke, testified that
his understanding of the rule concerning solicitation was
that there was to be no solicitation on company property. As
argued by the General Counsel, the rule was misunderstood
by employees even after the revised posting; and even more
importantly, during the period when the presumptively
invalid solicitation rule was in effect, until November 22,
1978, employees were engaging in numerous union activities
and from the credited testimony in this record apparently
also making solicitations for the Union on their own time
because of the confusion as to Respondent's policy on this
matter. At best, the solicitation rule here in question was so
ambiguous as to confuse the employees, and it is well settled
that the risk of that ambiguity in these situations must be
borne by the employer; and this must be particularly so in
view of the fact that a union campaign was in full swing
from July 1978 until November 22, 1978, when a new
solicitation rule was finally posted. Moreover, neither of the
postings rescinding of the old solicitation rule took place
until after the original charge was filed herein. Thus, I am in
agreement that Respondent's belated posting of a new rule is
not sufficient to overcome the coercive effect of the old one,
" These work rules, revisions of those promulgated in early 1975, contained
a rule which prohibited solicitation in work areas, listed as a "Major
Company Rule," and requiring a written reprimand or an incident report for
its violation. Two such reprimands were and are a cause for termination. See
G.C. Exh. 2.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
especially since union activities were taking place during the
time when the old rule was admittedly still in effect.
Furthermore, as has also been pointed out, in view of
Respondent's failure to rescind the rule in question until
November 1978 and the apparent confusion of employees
about the company policy regarding solicitation, there is still
lacking justification for Respondent's argument that no
employees were ever actually disciplined for solicitation.
There are decisions by the Board to the effect that a
presumptively invalid no-solicitation rule was violative of
the Act even in the absence of evidence that the rule had
ever been enforced in an improper manner." The decision
was based on employees' apparent confusions as to the
meaning of the rule, making the rule at best ambiguous, and
thus unlawful. In the instant case I have found that during
times material to the organizational efforts involved herein,
Respondent had an overly broad and unlawful no-solicita-
tion rule in effect.
It is alleged that on or about October 22, 1978, Respon-
dent reassigned employees Martin Howard and Bruce
Tongate to more menial and less desirable job tasks.
The Respondent introduced testimony through Foreman
Bill Moxley to the effect that about 4 p.m. on October 22, he
observed considerable paper refuse scattered about the
breakroom, and that the area was much worse than usual
': See Gerry's Cash Markeis. Inc.. d/b/a Gerry's I.GA.. 238 NLRB 1141
(1978).
with paper cups, sandwich wrappers, keypunch confetti, and
union literature scattered about the floor and tables. Moxley
stated that he then instructed Tony Elder, an employee in
the general labor classification, to clean up the break or
lunchroom, which Elder did as Moxley observed.
Moxley testified that between 5:30 and 6 p.m., he once
more observed the breakroom and again found it in a littered
condition; and the mess appeared to have been deliberate.
Moxley then told Martin Howard, a metal handler, to clean
the break area or room. Moxley checked the breakroom
after Howard cleaned it and found it satisfactory. However,
about 9 or 9:30 p.m., Moxley once more checked the
breakroom and stated that he again found paper refuse
scattered over the floor and tables, and he then instructed
metal handler Bruce Tongate to clean the breakroom when
he finished pouring metal. Tongate protested by telling
Moxley he did not want to clean the breakroom, but
apparently did go to the area. According to Moxley, 15
minutes later he again checked the lunchroom, but the room
looked as if it had not been touched. Moxley stated he then
told Tongate that while he may have cleaned up the room
earlier it was messy again, and he wanted Tongate to once
again clean the room. Tongate, in apparent anger, remarked
that he would "like to try [Moxley] on," but Tongate did
then clean the breakroom.
1320
NATIONAL SOUTHWIRE ALUMINUM
Counsel for Respondent argues that picking up the
breakroom is probably no more or less desirable than
pouring hot molten metal. However, as has been pointed
out, it is well established Board law that it is not essential in
finding a violation for a work assignment to be more
physically demanding or that an employee receive less pay in
order to find less desirable working conditions. It is clear
from this record that both Tongate and Howard felt they
were being punished or mistreated for their organizational
activities on behalf of the Union by being made to clean the
lunchroom and to "get rid" of union handouts. Moreover,
Respondent's only showing that any other employees, not
including the janitors, who had been required to clean the
lunchroom, consists of two employees. But one employee,
Tony Elder, who cleaned the room prior to Howard, was
one of the employees with Howard found by Foreman
Moxley in possession of union literature during the first
week in October. The only other incident occurred after
October 22, 1978, when labor employee Danny Dunn
allegedly cleaned the lunchroom on October 23, but after
union supporters had protested to Moxley that they felt
Tongate and Howard had been singled out because of their
union activity. There was also testimony that Paul Smith
was asked to clean "AWIU" off a table on October 13, and
that Gerald Hendricks was told to remove a sticker from a
restroom mirror. However, in both these instances the union
signs could be said to have defaced company property,
unlike the simple act of placing union handouts on lunch-
room tables. Moreover, as further indicated, the record is
devoid of any firsthand testimony as to the circumstances
surrounding these incidents. None of the employees in-
volved, or even the supervisors who asked them to perform
the acts, were called as witnesses, and the only evidence
comes from reports made to Spencer Moore as metal
services superintendent.
As pointed out previously herein, Respondent's only
explanation for an apparent change in its policy concerning
the cleaning the lunchroom, was a visit by its vice president
on September 15 and a subsequent memorandum by Spencer
Moore concerning inadequate janitorial service. However,
Respondent presented no evidence that it decided, as a result
of the above, to institute any change in the normal duties of
its metal handlers. In accordance with the above, I have
found that on the date in question, Respondent reassigned
Howard and Tongate to more menial and less desirable job
tasks because of their union activities.
THE REMEDY
Having found that Respondent had engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
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
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described and detailed in
section iii, above, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)( ) and (3) of the Act.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, National Southwire Aluminum Compa-
ny, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees as to their union sympathies,
and then threatening them with loss of job opportunities
because of such sympathies.
(b) Threatening terminations because of union stickers on
plant mobile units or equipment.
(c) Unlawfully prohibiting the distribution of union
literature in nonwork areas on nonworktime.
(d) Maintaining an unlawful no-solicitation rule prohibit-
ing employees' solicitations in work areas during nonwork-
time.
(e) Assigning employees to more menial and less desirable
job tasks because of their union activities and sympathies.
(f) Discouraging membership in the Union, or any other
labor organization of its employees, by discriminating
against them in regard to their hire and tenure of employ-
ment or any terms and conditions of employment.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which the
undersigned finds will effectuate the policies of the Act:
(a) Give assurances to Martin Howard and Bruce Tongate
that they will only be required to perform the normal and
usual duties of employees in the metal workers classification.
(b) Post at its place of business in Hawesville, Kentucky,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional Director
for Region 9, and after being duly signed by Respondent's
representative, shall be posted by Respondent 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.
"In the event that this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relalions Board."
1321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of thisOrder, what steps have
been taken to comply herewith.
1322