North American Pipe Corp.

National Labor Relations Board - Board Decisions

Jul 31, 2006

347 N.L.R.B. 836 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 78
836
North American Pipe Corporation and UNITE
HERE.1 Cases 26–CA–21773 and 26–CA–21833
July 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 29, 2005, Administrative Law Judge Marga-
ret G. Brakebusch issued the attached decision. The
General Counsel and the Charging Party each filed ex-
ceptions and a supporting brief. The Respondent filed an
answering brief. The Charging Party filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings, and conclusions,2
and to adopt the recommended Order.
I. INTRODUCTION
In this case, we consider the lawfulness of the Respon-
dent’s unilateral grant of a companywide stock award to
employees in a bargaining unit represented by the Union.
As explained in more detail below, the one-time grant
was made to all employees at each of the Respondent’s
facilities in connection with the initial public stock offer-
ing of the Respondent’s parent corporation. The com-
plaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by granting the stock to unit
employees without first notifying and giving the Union
an opportunity to bargain about the matter. The judge
found that the grant of stock constituted a gift and, con-
sequently, was not a mandatory subject of bargaining
that required notice to or bargaining with the Union. For
the reasons stated herein, we agree with the judge’s con-
clusion.3
II. FACTUAL BACKGROUND
The Respondent, a subsidiary of Westlake Chemical
Corporation (Westlake), operates 13 manufacturing fa-
cilities throughout the United States, including a plant in

1 We have amended the caption to reflect the disaffiliation of UNITE
HERE from the AFL–CIO effective September 14, 2005.
2 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by (1) maintaining, giving effect to, and enforcing
an overly broad no-solicitation rule, (2) selectively and disparately
enforcing a facially valid employee rule, and (3) prohibiting employees
from distributing union literature to other employees on the Respon-
dent’s parking lot. There are also no exceptions to the judge’s finding
that deferral pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971),
is not appropriate here.
3 The judge also found that the Union contractually waived its right
to bargain with respect to the stock award. In light of our conclusion
that there was no duty to bargain over this grant of stock, we do not
reach the waiver issue.
Van Buren, Arkansas, where it manufactures polyvinyl
chloride piping products. The Union represents ap-
proximately 50 production and maintenance employ-
ees at the Van Buren facility.
On August 11, 2004,4 Westlake made its initial pub-
lic stock offering (IPO). Although not mentioned by
the judge, on or about August 14, Westlake’s vice-
president of administration, David Hanson, convened a
meeting among Westlake’s human resources manag-
ers, each of whom was responsible for a different
Westlake business unit. The assembled group included
Keith Johnson, Westlake’s human resources manager
for the fabricated products group, which includes the
Respondent’s Van Buren facility. At that meeting, the
human resources managers were informed that West-
lake would be giving 100 shares of stock to all West-
lake and Westlake-related employees, and that West-
lake would be sending letters to all employees notify-
ing them about the stock giveaway.
On August 16, the Respondent posted on the bulletin
board in its break room an interoffice memorandum it
received from Westlake. The memorandum was from
Westlake’s president and CEO, Albert Chao, and ad-
dressed to “[a]ll regular, full-time employees” at each
Westlake-related facility. The memorandum an-
nounced Westlake’s IPO and stated
In recognition of this important historic com-
pany event and the significant contribution made
by each of you toward the growth and success of
the company, the Board of Directors has author-
ized an award of 100 shares of common stock to
each full-time, regular employee with at least six
months of service as of today. These shares will
be awarded to you initially in the form of stock
units, and shares will be distributed to you at the
conclusion of six months, provided you remained
a regular, full-time employee during that period.
Please accept our appreciation for your efforts.
We are confident that as we work together we can
continue to build a strong and successful Westlake
Chemical Corporation for all of our shareholders,
including each of you. [emphasis in original]
Identical memoranda were posted at each of the Respon-
dent’s facilities.
Because the announcement coincided with John-
son’s regular visit to the Van Buren facility, it was
decided that he would bring the employee-notification
letters with him to the plant. When he arrived, John-
son gave the sealed letters to the Respondent’s local

4 All dates are in 2004.
NORTH AMERICAN PIPE CORP. 837
human resources representative for distribution. Thus,
on August 18, the Respondent distributed to eligible em-
ployees at its Van Buren facility the two-page letter from
Westlake more specifically detailing the terms and condi-
tions to which the stock award was subject. Identical
letters were delivered to eligible employees at the Re-
spondent’s other facilities. The letter reiterated that the
restricted stock units would vest, and thereafter be issued
as shares of common stock, six months after the grant
date. If any employee’s employment terminated other
than by reason of death within that 6-month period, then
the unvested restricted stock units would be forfeited.
Provision was also made for any tax withholding obliga-
tions applicable to the award of stock.5
The Respondent awarded the stock units to all eligible
employees at all of its facilities, including hourly em-
ployees, supervisors, and management employees. This
was done without notice to or bargaining with the Union
that represents the employees at the Van Buren facility.
The stock was valued at approximately $1450 per em-
ployee at issuance. By the time of the hearing, it had
increased in value to approximately $3000.
III. ANALYSIS
The general principles involved here are well estab-
lished. An employer and the representative of its em-
ployees are obligated to bargain with each other in good
faith with respect to wages, hours, and other terms and
conditions of employment. NLRB v. Borg-Warner
Corp., 356 U.S. 342, 349 (1958). The mandatory duty to
bargain is limited to those subjects; as to all other mat-
ters, each party is free to bargain or not to bargain. Ibid.
Among those other matters not requiring bargaining are
gifts given to employees by their employers. See, e.g.,
Benchmark Industries, 270 NLRB 22 (1984), affd. Amal-
gamated Clothing v. NLRB, 760 F.2d 267 (5th Cir.
1985).
The inquiry here is whether the Westlake stock award
was a gift or whether it was wages or a term and condi-
tion of employment. The Board has construed the term
“wages” as used in the Act to include “emoluments of
value…which may accrue to employees out of their em-
ployment relationship.” See generally Inland Steel Co.,
77 NLRB 1, 4 (1948), enfd. 170 F.2d 247 (7th Cir.
1948), cert. denied 336 U.S. 960 (1949). On the other

5 The letter provided for “withhold[ing] an appropriate number of
shares of Common Stock, having a Fair Market Value . . . equal to the
amount necessary to satisfy the minimum federal, state and local tax
withholding obligation with respect to this Award.” In the alternative,
the letter provided for “tax withholding to be satisfied by a cash pay-
ment to the Company, by withholding an appropriate amount of cash
from base pay, or by such other method as the [plan] Administrator
determines may be appropriate. . . .”
hand, it is recognized that gifts do not become wages
or terms and conditions of employment simply because
they are made in the context of an employment rela-
tionship. An employer can make such payments as it
pleases. NLRB v. Wonder State Mfg. Co., 344 F.2d
210, 213 (8th Cir. 1965), denying enf. in pertinent part
to 147 NLRB 179 (1964).
If the ostensible gifts are so tied to the remuneration
which employees receive for their work that they are in
fact a part of the remuneration, they are in reality
wages and subject to the statute’s mandatory duty to
bargain. Ibid.6 A sufficient relationship to remunera-
tion may exist if the payment is tied to various em-
ployment-related factors. See Benchmark Indus., 270
NLRB at 22 fn. 5 (explicitly adopting the analysis used
by the Eighth Circuit in NLRB v. Wonder State Mfg.,
supra, and by former Member Kennedy in his dissent
in Nello Pistoresi & Sons, 203 NLRB 905, 907
(1973)); see also Freedom WLNE-TV, Inc., 278 NLRB
1293, 1297 (1986). These factors include work per-
formance, wages, regularity of the payment, hours
worked, seniority, and production.7
In Benchmark Industries, the Board looked to these
factors in finding that the employer did not violate
Section 8(a)(5) by unilaterally discontinuing the giving
of Christmas hams and dinners. It concluded that these
items were “merely gifts” because they “had been
given to all employees regardless of their work per-
formance, earnings, seniority, production, or other
employment-related factors.” 270 NLRB at 22. Simi-
larly, in Stone Container Corp., supra, the Board
found that the employer did not violate Section 8(a)(5)
by unilaterally discontinuing a company picnic, a $20
Christmas gift certificate, and a Thanksgiving dinner.
The Board found that these were gifts rather than terms
and conditions of employment because they “were not
related to any performance or production standards.”
313 NLRB at 337.

6 In NLRB v. Wonder State Mfg. Co., 344 F.2d at 213, the Eighth
Circuit stated the rule as follows:
The rule is that gifts per se—payments which do not constitute
compensation for services—are not terms and conditions of em-
ployment, and an employer can make such payments as he pleases,
but if the gifts or bonuses are so tied to the remuneration which
employees received from their work that they were in fact a part of
it, they are in reality wages and within the statute. This is a ques-
tion of fact. . . .
7 See, e.g., Waxie Sanitary Supply, 337 NLRB 303, 304 (2001);
Stone Container Corp., 313 NLRB 336, 337 (1993); Mr. Potty, Inc.,
310 NLRB 724, 729–730 (1993); Phelps Dodge Mining Co., 308
NLRB 985 (1992), enf. denied 22 F.3d 1493 (10th Cir. 1994); Free-
dom WLNE-TV, 278 NLRB at 1297; Benchmark Indus., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD838
In cases where the Board has found payments to con-
stitute wages, there have been clear ties to employment-
related factors. See Niles-Bement-Pond Co., 97 NLRB
165, 166 (1951), enfd. 199 F.2d 713 (2d Cir. 1952)
(Christmas bonus constituted wages where it was calcu-
lated either as one week’s pay, a percentage of each em-
ployee’s yearly earnings, or a dollar for each year of con-
tinuous service, and was thus “directly related in amount
and supplementary to [employee] wages or earnings.”);
Freedom WLNE-TV, supra (Christmas bonus was a term
and condition of employment because it was computed
using a “perceivably objective formula” based on the
employees’ weekly base salary and years of service);
Phelps Dodge Mining Co., supra (“appreciation pay-
ments” in amounts of up to $1000 “constituted signifi-
cant economic benefits to eligible employees based on
the employment-related factors of wages and hours
worked” where the amount “was a function either of the
work [the employees] had recently performed, or of the
regular wages they were currently earning”) (emphasis
added). These factors are not present in this case.
Our finding that the stock award in this case was a gift
is consistent with the analysis used in the aforementioned
precedent. The award was not tied to employee remu-
neration. The size of the award was established without
regard to any employment-related factors, including
work performance, wages, hours worked, seniority, or
productivity. In fact, the value of the award, when an-
nounced and when vested, was determined solely by
market demand for equity shares in Westlake. Further, all
eligible employees at each of Westlake’s facilities, in-
cluding the Respondent’s Van Buren plant, received the
same amount of stock whether they were the highest paid
managers or the lowest-paid hourly employees. Finally,
the award was related to a one-time event—the parent
corporation’s IPO—with no promise or prospect of repe-
tition.
We recognize that the Board found that a stock award
constituted wages in the context of a refusal-to-bargain
analysis in United Shoe Machinery Corp., 96 NLRB
1309 (1951). That case does not support our colleague’s
position that the stock here constituted wages. First,
United Shoe Machinery predates by approximately 30
years the Board’s adoption in Benchmark Industries of
the multi-factor gift analysis we apply here, and the ear-
lier case was not thereafter cited for the proposition
stated by the dissent. Second, the case is factually dis-
tinguishable. By the time the union in United Shoe Ma-
chinery requested bargaining over “the policy and
method of distributing stock bonuses in the form of 10
shares of stock to each employee with 25 years or more
of service,” the employer had maintained the practice for
over 25 years. United Shoe Machinery, 96 NLRB at
1321–1322, 1326. Consequently, unlike the present
case, United Shoe Machinery is comparable to those
cases in which the Board has found that an employer
cannot unilaterally discontinue a bonus if it is of a
fixed nature and has been paid over a sufficient length
of time or with an explicit promise of future payments,
thereby creating a reasonable expectation among em-
ployees that the payment will be received as part of
their remuneration from employment.8 Here, we con-
sider a first and only stock giveaway for which both
the decision to make the gift and the method by which
it would be made were created not by the Respondent,
but by its parent corporation.9 Also, United Shoe Ma-
chinery concerned stock awards given on an individual
basis in “recogni[tion of] long continued service[.]” Id.
at 1321. As such, each individual award of stock was
an award in recognition of the recipient’s achieving an
advanced seniority level with the employer. Here, in
contrast, the stock giveaway was predicated upon
Westlake’s IPO, an event wholly unrelated to any
work performed or seniority attained by the Respon-
dent’s employees. While all eligible recipients had to
serve a minimum of one year in order for the stock
right to vest, it can scarcely be said that the stock was
an award in recognition of that term of service. For all
these reasons, United Shoe Machinery does not affect
our decision here.10

8 See, e.g., Waxie Sanitary Supply, 337 NLRB 303, 303–304
(2001), and Laredo Coca Cola Bottling Co., 241 NLRB 167, 174
(1979), enfd. 613 F.2d 1338 (5th Cir. 1980), cert. denied 449 U.S.
889 (1980).
9 This is not to suggest that a bonus cannot be a mandatory sub-
ject of bargaining simply because it results from a corporate parent’s
decision. However, the origin and purpose of the one-time Westlake
stock award are relevant in an overall assessment of its ties to em-
ployment-related factors.
10 In Exxel/Atmos, Inc., 323 NLRB 884, 885 (1997), enf. denied
147 F.3d 972 (D.C. Cir. 1998), the Board stated that “a bonus paid to
employees, at Christmas or otherwise, is a condition of employment
and the proper subject of collective bargaining.” This statement
went beyond the facts of the case, and was therefore dictum. Fur-
ther, the statement must be viewed in context. The Board’s use of
the term “bonus” in the above-quoted passage from Exxel/Atmos was
immediately followed by a discussion of Niles-Bement-Pond Co., 97
NLRB 165 (1951), enfd. 199 F.2d 713 (2d Cir. 1952), in which the
Board found that a “bonus” arrangement pursuant to which the em-
ployer, over a period of 12 years, had paid employees “compensation
directly related in amount and supplementary to their wages or earn-
ings,” constituted wages, notwithstanding the fact that the annual
supplemental payments occurred at Christmas time. 97 NLRB at
166. The Board there specifically defined a “bonus” as “‘not a gift
or gratuity, but a sum paid for service, or upon a consideration in
addition to or in excess of that which would ordinarily be given.’”
Id. at fn.3 (quoting Kenicott v. Wayne County, 16 Wall. 452, 471).
Read in context, the language in Exxel/Atmos is reconcilable with
Board precedent. This is especially so given the Board’s mention of
NORTH AMERICAN PIPE CORP. 839
The General Counsel and the Charging Party argue
that the gift analysis applies only to items of token value.
In their view, any benefit of substantial value given by an
employer to an employee is a mandatory subject for bar-
gaining with the employee’s union representative. Even
applying the gift analysis, the General Counsel and the
Charging Party argue that the Respondent’s stock award
was tied to both seniority and work performance. They
assert that the 6-months-of-service eligibility require-
ment tied in to seniority, and that the additional-6-
months-of-employment vesting requirement tied in to
employee work performance. They also contend that
certain comments in the memorandum announcing the
award tie the stock award to employee performance. We
disagree.
First, the gift analysis set forth above is not limited to
items of token value. By its own terms, the analysis ap-
plies regardless of the amount involved. See NLRB v.
Wonder State Mfg. Co., supra, at 213. Moreover, the
Board has applied this analysis in cases where the pay-
ments in issue were clearly of significant economic
value. See Cypress Lawn Cemetery Assn., 300 NLRB
609, 613 fn.9 (1990) (paid vacations to Hawaii were a
reward for good work and as such constituted wages);
accord Wonder State Mfg. Co., 344 F.2d at 213 (bonus of
one week’s wages constituted a gift). The Board has
never found that an ostensible gift constituted wages
solely because of the value of the gift.
Second, as previously discussed, the stock award was
not tied to seniority. To establish this link, the seniority
of employees must either be proportionately related to
the amount received, see, e.g., Freedom WLNE-TV, supra
(formula based in part on years of service); see also Elec-
tric Steam Radiator Corp., 136 NLRB 923 (1962), enfd.
321 F.2d 733 (6th Cir. 1963) (bonus amount based on
length of service), or the stock must be given in recogni-
tion of an employee’s attaining a specific level of senior-
ity. See United Shoe Machinery, 96 NLRB at 1321
(stock award authorized to “recognize long continued
service by employees in a substantial way”). Here, there
is no relationship between the employees’ relative sen-

the respondent’s concession that the bonus in Exxel/Atmos, unlike the
stock award here, was tied to a specific work-related factor, i.e., the
employees’ increased sales performance during the year. Exxel/Atmos
does not, however, stand for the proposition that any item of value
bestowed upon employees as an act of appreciation, rather than as
compensation for services, constitutes wages within the meaning of the
Act simply because the gift is called a bonus. Indeed, such an interpre-
tation would negate the Wonder State Mfg. Co. standard specifically
adopted by the Board in Benchmark Indus. See fn. 6, supra (“gifts per
se—payments which do not constitute compensation for services—are
not terms and conditions of employment, and an employer can make
such payments as he pleases”).
iority and the amounts they received. Indeed, all eligi-
ble employees received the same amount of stock
without regard to their seniority. Nor was the stock
given to employees in recognition of their attaining
any particular level of seniority.
Third, the stock award was not tied to work per-
formance. While vesting of the award was conditioned
upon continued employment for 6 months, the award
was not dependent on the quality or quantity of work
performed during that period or indeed any period.
Compare Mr. Potty, Inc., 310 NLRB 724, 726 (1993)
(eligibility for bonus tied in to 39 different perform-
ance factors, “substantially all” of which must be met).
Likewise, Westlake’s statements that the award was
made “in recognition of. . . the significant contribution
made by each [employee]” and in “appreciation for
[employees’] efforts” do not relate the award to any
discrete and specific work performed by the Respon-
dent’s bargaining unit employees. As such, they have
little to do with the level at which or the manner in
which these employees performed their work. As dis-
cussed above, the grant of stock was tied to the IPO.
The IPO, in turn, was linked to Westlake’s “growth
and success,” and that, in turn, was linked to the “sig-
nificant contribution” of the employees. However, this
chain is far too tenuous to support a conclusion that
employees were receiving the stock because of their
performance.11

11 Because the issue is not before us, we need not decide whether
an employer’s payment may be wages if given in recognition of
specific collective work performance by the recipient employees.
Thus, the dissent’s reliance on Boise Cascade Corp., 304 NLRB 94
(1991), is unavailing. In Boise Cascade, the employer issued gift
certificates to crossover employees. While the employer in its an-
nouncement stated that it was “in consideration for their long hours
of work and dedication” during a strike which enabled the employer
to meet its contract orders, 304 NLRB 95 fn. 6, the gift certificates
were issued only after the crossover employees brought to the em-
ployer’s attention the fact that out of town salaried employees who
worked during the strike received compensation for their expenses
while the crossovers did not. In these circumstances, the Board
found that the issuance of the gift certificates was a term or condition
of employment because it was a benefit related to the crossovers’
“active employment during the strike.” Id. at 96.
We recognize that the Respondent here referred to employees’
“contribution” to Westlake’s “growth and success.” Such general-
ized statements of appreciation merely demonstrate the employer’s
good will towards its employees. Prefatory statements of this nature
are entitled to little weight in determining whether a payment to
employees is tied in to employment-related factors. Moreover, that
generalized expression was not tied to any specific service rendered
or to any specific period of time, and thus does not transform what is
in reality a gift to wages. Quite simply, the stock here was granted
in conjunction with the IPO. Absent that event, there would have
been no stock gift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD840
The Charging Party also argues that the Respondent
recognized that the award constituted wages when it
made provision for withholding amounts necessary to
fulfill tax obligations relative to the award. In finding
that certain payments constituted wages rather than gifts,
the Board has considered employers’ decisions to with-
hold taxes from the payments. See Phelps Dodge Mining
Co., 308 NLRB at 1000; see also Radio Television Tech-
nical School v. NLRB, 488 F.2d 457, 460 fn. 3 (3d. Cir.
1973), enfg. Ryder Technical Institute, 199 NLRB 570
(1972). Nevertheless, this factor alone is not dispositive.
Indeed, in those cases, the withholding of taxes was
merely one of many factors supporting findings that the
payments constituted wages. See Phelps Dodge Mining
Co., supra (one of 6 factors, including clear ties to wages
and hours worked, and employer characterizations of the
payments as compensation for work performed). Given
the absence of such other factors here, the Respondent’s
provision for tax withholding is insufficient to convert
the distribution of stock units from a gift into wages.12
Our dissenting colleague repeats many of the argu-
ments advanced by the General Counsel and the Charg-
ing Party for finding the stock award to be wages; viz,
that it was based on the “employment-related” factors of
6 months service prior to the award and remaining con-
tinuously employed for an additional 6 months. For the
reasons stated above, we disagree. The dissent, making
an argument not advanced by either the General Counsel
or the Charging Party, also argues that the stock award
was conditioned on the nature of the employees’ service
in that only regular full-time employees were eligible.
Our colleague infers from this condition that the Respon-
dent determined that only those employees were deserv-
ing based on their work schedules and longer working
hours—an “assessment” based on working hours. We
find the evidence insufficient to support such an infer-
ence.
In fact, Westlake, not the Respondent, determined the
regular full-time eligibility requirement, and there is no
record evidence of its reasons for doing so, much less
any evidence that the requirement was specifically re-
lated to work performed by the Respondent’s regular
full-time workforce. Thus, the General Counsel has not
shown (or contended) that this qualification was an “as-
sessment” based on working hours. Indeed, the record
does not show whether any employee was excluded from
the award because of this provision, or that the Respon-
dent even had any employees who were not “regular”

12 There is no suggestion, and indeed it is counter-intuitive, to con-
clude that the IRS, in deciding whether to tax, would be bound by the
same considerations that bear on the issue of whether the matter is
bargainable under the Act.
and “full time.” For these reasons, the requirement
that gift recipients be regular, full-time employees does
not establish that the award was “so tied to the remu-
neration which employees received from their work
that [it was] in fact a part of it. . . .” NLRB v. Wonder
State, supra, 344 F.2d at 213.
For the foregoing reasons, we find, in agreement
with the judge, that the Westlake IPO stock award was
a gift and was not a mandatory subject of bargaining
that required Respondent to give notice to and bargain
with the Union about it. Accordingly, we conclude
that the Respondent’s unilateral award of stock units to
bargaining unit employees did not violate Section
8(a)(5) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, North American Pipe Cor-
poration, Van Buren, Arkansas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
MEMBER WALSH, dissenting.
The Respondent’s unilateral award of 100 shares of
company stock to certain employees was not a “gift.”
The grant of the stock award, worth approximately
$1450 at the time, was tied to “employment-related
factors,” including an employee’s past and future ser-
vice and working hours, and therefore constituted a
form of wages. Accordingly, the stock award was a
mandatory subject of bargaining and the Respondent’s
unilateral action violated Section 8(a)(5) and (1) of the
Act.
I. BACKGROUND
In conjunction with an initial public offering of com-
pany stock, the Respondent unilaterally granted 100
shares of stock to employees, including 45 bargaining-
unit employees, in recognition of the event and “the
significant contribution made by each [employee] to-
ward the growth and success of the company.”1 But
the Respondent did not recognize every employee’s
contribution to its growth and success. An employee
received the stock award only if he was a regular em-
ployee, if he worked full-time, if he had at least 6
months’ of continuous service, and if he remained a
regular, full-time employee for an additional 6 months.

1 The majority correctly observes that the stock award was initi-
ated by the Respondent’s corporate parent, Westlake Chemical Cor-
poration. However, the Respondent has not argued that it is a dis-
tinct legal entity from Westlake for purposes of this case, or that it
otherwise bears no liability under the Act for this reason.
NORTH AMERICAN PIPE CORP. 841
If an employee failed to meet any one criterion, he re-
ceived nothing.
II. WAGES BROADLY DEFINED
The term “wages,” as used in Section 8(a)(5) and (d)
of the Act, broadly encompasses “emoluments of value
arising out of the employment relationship.” Inland Steel
Company, 77 NLRB 1, 4 (1948), enfd. 170 F.2d 247 (7th
Cir. 1948), cert. denied 336 U.S. 960 (1949). Employer
payments to employees fall within this broad definition if
they are linked to an “employment-related factor,” in-
cluding, but not limited to, wage rates, production, per-
formance, seniority, or hours worked. See generally
Benchmark Industries, 270 NLRB 22 fn. 5 (1984), enfd.
sub nom. Amalgamated Clothing v. NLRB, 760 F.2d 267
(5th Cir. 1985) (table).
As indicated, an employer payment need only be re-
lated to one employment-related factor to constitute
wages. In United Shoe Machinery Corp., 96 NLRB 1309
(1951), for example, the Board found that the employer
violated Section 8(a)(5) and (1) of the Act by unilaterally
withholding from a 25-year employee a fixed award of
10 shares of stock earmarked for employees who accrued
25 years of continuous service. The Board rejected the
employer’s argument that the stock award was merely a
gift or a gratuity not subject to bargaining. The Board
expressly adopted the judge’s reasoning:
[T]he bonus grant of stock is an emolument of value, a
perquisite earned by reason of the employment rela-
tionship. As such, it comes within the statutory defini-
tion of “wages” and is, therefore, an appropriate subject
of bargaining between employer and employees.
United Shoe Machinery, supra, 96 NLRB at 1326. The
stock award constituted wages even though it bore no rela-
tion to an employee’s individual wage rate, production, per-
formance, or hours worked.2
Moreover, an employer payment may constitute wages
even when it is designed to recognize employees’ collec-
tive effort as opposed to employees’ individual achieve-
ments. In Exxel/Atmos, Inc., 323 NLRB 884, 885-886
(1997), enf. denied 147 F.3d 972 (D.C. Cir. 1998), the
Board found that an unprecedented $100 Christmas bo-

2 The majority argues that United Shoe Machinery is distinguishable
because, there, the employer had regularly granted the stock award for
25 years and it was tied directly to a specific length of service. The
“regularity” factor is not a distinguishing feature. That factor surely is
significant where an employer unilaterally discontinues an award. But,
for obvious reasons it cannot logically be deemed a prerequisite to a
finding that a first-time stock award constitutes wages. Further, as
shown below, an employee’s receipt of the Respondent’s stock award
did depend on the employee having worked continuously for the Re-
spondent for a minimum period of time.
nus granted to all employees constituted wages. As the
Board explained, “[i]t is well-settled Board law that a
bonus paid to employees, at Christmas or otherwise, is
a condition of employment and the proper subject of
collective bargaining.” 323 NLRB at 885. The em-
ployer had not derived the $100 bonus amount from
any specific formula. Indeed, there apparently was no
evidence that the $100 bonus was linked in any way to
an employee’s individual wage rate, production, per-
formance, seniority, or hours worked. The employer
simply granted the uniform bonus to show its “appre-
ciation for the increased sales generated by the em-
ployees” as a whole during the year. Id.3
II. THE RESPONDENT’S STOCK AWARD
CONSTITUTED WAGES
The Respondent’s stock award constituted wages
subject to bargaining with the Union. As the employer
did in Exxel/Atmos, the Respondent granted employees
a uniform bonus in recognition of their collective con-
tribution to the employer’s financial success. The em-
ployer in Exxel/Atmos wanted to recognize its employ-
ees’ contribution to its increased sales for the year; the
Respondent wanted to recognize “the significant con-
tribution made by each [employee] toward the growth
and success of the company.” These parallels in the
employers’ methods and reasons for rewarding their
respective employees’ collective efforts weigh heavily
in favor of a finding that, like the Christmas bonus in
Exxel/Atmos, the stock award here constituted wages.4
Moreover, additional aspects of the Respondent’s
stock award present an even more compelling case for
finding a violation than in Exxel/Atmos. The Respon-
dent actually applied specific “employment-related
factors” to select award recipients. The Respondent
reserved the stock award for employees who had con-
tributed a minimum period of continuous service to the
Respondent. An employee had to have at least 6
months of continuous service to be eligible for the
award. Further, the employee’s actual receipt of the

3 The D.C. Circuit disagreed with the Board’s finding that the
$100 Christmas bonus constituted wages, in part because the court
concluded that the Board had failed to adequately weigh the absence
of evidence that the employer had previously granted such a bonus.
This is the same “regularity” factor on which the majority seeks to
distinguish United Shoe Machinery, supra. Again, this factor is
more applicable to cases in which an employer discontinues a bonus
than to first-time bonus cases. For this reason, among others, I re-
spectfully disagree with the court’s analysis.
4 The majority’s laborious attempt to distinguish Exxel/Atmos is
not convincing. As the majority points out, a key fact in
Exxel/Atmos was that the employer was rewarding the employees for
the employer’s increased sales performance over the preceding year.
As discussed, this establishes a parallel, not a difference, with the
instant case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD842
award was conditioned on his remaining continuously
employed by the Respondent for an additional 6 months.
Thus, the Respondent decided that the award should go
only to those employees who had completed a year of
continuous employment with the Respondent. Surely,
“employment-related factors” must at least include re-
maining continuously employed for a minimum period of
time.
The requirement that employees remain continuously
employed beyond the date of the Respondent’s an-
nouncement of the stock award is particularly significant
for two additional reasons. First, the requirement is in-
consistent with the common understanding of a “gift” as
being something given “with no strings attached.”
Benchmark Industries, supra, 270 NLRB 22 (classifying
employer-provided Christmas dinners and hams as “gifts
with no strings attached”); see also Merriam-Webster’s
Collegiate Dictionary, p. 491 (10th ed. 1999) (defining a
gift as “something voluntarily transferred from one per-
son to another without compensation”). The Respon-
dent’s insistence that employees remain continuously
employed for an additional 6 months plainly was a sig-
nificant “string,” as it precluded employees from accept-
ing other employment, retiring, taking leaves of absence,
etc., if they wanted to receive this significant payment.
Second, the requirement that employees accrue an ad-
ditional 6 months of continuous service indicates that the
Respondent’s stock award was a form of deferred com-
pensation. The stock award rewarded employees’ past
service but the delayed-vesting component of the award
served as an incentive to encourage employees’ future
service as well. Thus, an employee could not claim the
Respondent’s “gift” unless he satisfied a predetermined
period of additional continuous employment. In this
respect, the stock award was akin to other forms of de-
ferred compensation that become available to employees
only upon the completion of some defined period of ser-
vice. See Exxel/Atmos, supra, 323 NLRB at 886; see
also, e.g., Midwest Power Systems, Inc., 323 NLRB 404
(1997) (current employees’ medical benefits upon re-
tirement are a mandatory subject of bargaining), re-
manded on other grounds 159 F.3d 636 (D.C. Cir. 1998)
(table).
Further, the Respondent’s stock award was condi-
tioned not just on an employee’s continuous service but,
also, on the nature of his service. The Respondent
granted the stock award only to regular, full-time em-
ployees. The Respondent excluded temporary employ-
ees, part-time employees, casual employees, etc. Implic-
itly, the Respondent determined that regular, full-time
employees were more deserving of the award, based on
their work schedules and longer working hours, than
other classes of employees. This clearly was an as-
sessment based on the “employment-related factor” of
working hours.5
Last, the Respondent’s decision to deduct employ-
ment taxes from the stock awards, although not deter-
minative, also supports a finding that the awards were
a form of compensation. See Phelps Dodge Mining
Co., 308 NLRB 985, 1000 (1992), enf. denied 22 F.3d
1493 (10th Cir. 1993). It shows that even the Respon-
dent understood that it was providing additional com-
pensation to certain employees, and not others, for the
services they provided as employees.
The majority argues that the stock award cannot
constitute wages because the specific amount awarded
each employee was not a function of, or derived from
an assessment of, his individual wage rate, production,
performance, seniority, or hours worked. Certainly,
the cases cited by the majority demonstrate that an
employer payment will be deemed “wages” when the
employer has performed such individualized calcula-
tions. However, this is not an indispensable require-
ment under Board precedent. See Exxel/Atmos, supra;
cf. Boise Cascade Corp., 304 NLRB 94, 96 (1991)
(finding that a uniform $450 gift certificate given to
employees as a “thank you” for showing up to work
during a strike was a mandatory subject of bargaining).
Further, although the majority correctly notes that
the substantial economic value of the Respondent’s
stock award is not determinative, it is relevant, and it
supports a finding that the award constituted compen-
sation. In Cypress Lawn Cemetery Assn., 300 NLRB
609, 613 fn. 9 (1990), for example, the Board found
that employer-provided vacations to Hawaii were a
mandatory subject of bargaining in part because
“[t]hese bonuses amounted to a significant economic
benefit to individual employees.” Cf. Boise Cascade
Corp., supra, 304 NLRB at 96 (finding that a $450 gift
certificate was subject to bargaining). In contrast, in
Benchmark Industries, supra, 270 NLRB 22, the Board
found that employer-provided Christmas dinners and
hams were merely gifts, stating, in part, “we do not
believe that the token items involved in the present

5 The majority observes that neither the General Counsel nor the
record establishes that the Respondent’s express reservation of the
stock award for regular, full-time employees was in recognition of
their greater contribution to its success. The Board, however, may
draw “‘legitimate inferences from proven facts.’” Hunter Douglas,
Inc. v. NLRB, 804 F.2d 808, 813 (3d Cir. 1986). To my mind, the
Respondent’s express purpose to recognize “the significant contribu-
tion made by each [employee] toward the growth and success of the
company” in combination with its express limitation of the award to
regular, full-time employees more than justifies the inference drawn
above.
NORTH AMERICAN PIPE CORP. 843
case can be fairly characterized as compensation.” Ac-
cord Stone Container Corp., 313 NLRB 336, 337 (1993)
(finding that a safety bonus comprised of a “small
amount of food did not rise to the level of a benefit or
compensation”). Plainly, the $1450 stock award here is
more analogous to a substantial vacation or cash bonus
than to a free holiday dinner.
In the end, the majority’s approach misses the forest
for the trees. This is a situation in which the Respondent
decided to show its appreciation to a select group of em-
ployees for their contribution to its growth and success.
If an employee satisfied the Respondent’s past and future
service requirements, and the Respondent’s regular, full-
time requirements, then the employee received 100
shares of stock. If an employee fell short on any one
criterion, then he received nothing. The Respondent’s
all-or-nothing approach demonstrates that the Respon-
dent was not merely celebrating the initial public offering
with all its employees. Rather, the Respondent was pro-
viding additional compensation to those employees
whom the Respondent deemed deserving of it. Conse-
quently, the stock award constituted a form of wages,
and the Respondent was not free to grant it unilaterally.
III. THE RESPONDENT DID NOT ESTABLISH A WAIVER
Finally, in agreement with the General Counsel and the
Charging Party, I find that the judge erroneously con-
cluded that the Union waived bargaining over the stock
award. In finding a waiver, the judge relied on Article
XI of the parties’ collective-bargaining agreement. Arti-
cle XI covers wage rates and provides, in pertinent part:
[N]othing in this Agreement shall be construed as pre-
venting the Company in its discretion from paying em-
ployees in a department a higher rate and/or improving
a benefit (whether it be an enhancement of the current
benefits or a reduction in the premium contribution)
than the employees in the department would otherwise
be entitled to under this Agreement.
The judge found that by this provision the Union clearly and
unmistakably waived its right to bargain over awards of
company stock to employees. I disagree.
The Board will not lightly infer a waiver of a statutory
right. See Owens-Corning Fiberglas, 282 NLRB 609
(1987). Such a waiver must be clear and unmistakable.
See Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
708 (1983). The Respondent has not carried its burden
here.
Article XI of the parties’ agreement does not mention
stock awards, let alone the granting of such awards on a
company-wide basis. It expressly deals only with the
Respondent’s discretion to improve departmental wage
rates and benefits. Nor is there any evidence that the
parties discussed awards of company stock in negotiat-
ing the language of Article XI. Indeed, all agree that
the Respondent’s stock award was unprecedented. In
these circumstances, I find that the evidence does not
support the judge’s finding that the Union clearly and
unmistakably waived its right to bargain over such
awards.
In finding to the contrary, the judge relied on John-
son-Bateman Co., 295 NLRB 180 (1989), in which the
Board found that a contract provision giving the em-
ployer discretion to grant any “additional pay or bene-
fits” to employees constituted a waiver of the union’s
right to bargain over an attendance incentive bonus
plan. Id. at 189. In Johnson-Bateman, however, the
Board emphasized that the contract provision giving
the employer discretion to grant additional pay was
“without qualification.” Id. Here, in contrast, Article
XI expressly addressed only departmental wage rates
and benefits. And, as the General Counsel argues, it
appears that, as to benefits, the parties intended only to
address then-existing benefits, which the stock award
clearly was not.
IV. CONCLUSION
The Respondent unilaterally granted certain em-
ployees $1450 worth of company stock to demonstrate
its appreciation for their contribution to its growth and
success. As demonstrated, the Respondent separated
the recipients of the award from the nonrecipients on
the basis of continuous service and working hours.
Thus, the stock award was not a “gift,” but a form of
additional compensation subject to bargaining with the
Union, which did not waive its right thereto. Accord-
ingly, I dissent from the majority’s refusal to find that
the Respondent’s unilateral action violated Section
8(a)(5) and (1) of the Act.
Rosalind Eddins, Esq., for the General Counsel.
L. Chapman Smith, Esq., for the Respondent.
Ira Jay Katz, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Fort Smith, Arkansas, on January 13
and 14, 2005. The original charge in Case 26–CA–21773
was filed by Unite Here, AFL–CIO, CLC (the Union) on
July 6, 2004,1 and amended on September 30, 2004. The
original charge in Case 26–CA–21833 was filed by the Un-
ion on August 26, 2004 and amended on October 27, 2004.
Based upon the allegations contained in these amended
charges, the Regional Director for Region 26 of the National

1 All dates are 2004 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD844
Labor Relations Board (the Board) issued an order consolidat-
ing cases, consolidated complaint and notice of hearing on
November 30, 2004. The complaint alleges that North Ameri-
can Pipe Corporation (the Respondent) violated Section 8(a)(1)
of the National Labor Relations Act (the Act), by maintaining
an unlawful no-solicitation rule, by prohibiting employees from
distributing union literature on the Respondent’s parking lot,2
and by selectively and disparately enforcing a rule in its em-
ployee handbook. The complaint also alleges that Respondent
violated Section 8(a)(5) and (1) of the Act by awarding 100
shares of stock to employees without notice to or bargaining
with the Union. Respondent filed a timely answer to the com-
plaint denying the alleged unfair labor practices.
On August 23, 2004, Forest Caple, an individual, filed a peti-
tion in Case 26–RD–1107 seeking an election to determine
whether the Union should remain the exclusive collective bar-
gaining representative of Respondent’s employees, in a unit of
production and maintenance employees and truck drivers em-
ployed at Respondent’s Van Buren, Arkansas facility. On
January 11, 2005, the Regional Director entered an order, con-
solidating cases 26–CA–21773, 26–CA–21833, and 26–RD–
1107 for the purpose of a hearing before an administrative law
judge. After the conclusion of the hearing, I ordered that case
26–RD–1107 be severed from cases 26–CA–21773 and 26–
CA–21833 and remanded to the Regional Director for Region
26. Accordingly, I have made no findings with respect to Case
26–RD–1107.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, manufactures polyvinyl chloride
piping products at its facility in Van Buren, Arkansas, where it
annually sells and ships goods valued in excess of $50,000 to
points located outside the state of Arkansas. Annually, Re-
spondent purchases and receives at its Van Buren, Arkansas
facility, goods valued in excess of $50,000 from points located

2 The consolidated complaint alleged that on or about June 23 and
30, 2004; Plant Manager Danny Ming prohibited an employee from
distributing union literature to other employees on Respondent’s park-
ing lot. During the hearing, I granted Counsel for the General Counsel’s
motion to amend the complaint to add Ray Dudley as a supervisor
and/or agent of Respondent and to allege an additional 8(a)(1) violation
that on or about late August 2004, Dudley prohibited employees from
distributing union literature to other employees on the Respondent’s
parking lot. Respondent admits that Dudley is a supervisor/agent but
denies the alleged 8(a)(1) violation.
3 On February 3, 2005, and after the close of the hearing, counsel for
the Union moved to supplement the record to add the listing of basic
hourly wage rates for the Van Buren plant that had been inadvertently
omitted from the collective-bargaining agreement previously admitted
into evidence as GC Exh. 2. Counsel for the General Counsel joined in
the motion and the motion was unopposed by Respondent. There being
no objection, the basic hourly wage rates identified as Exh. A to the col-
lective-bargaining agreement is received into evidence to supplement GC
Exh. 2.
outside the state of Arkansas. Respondent admits, and I find
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
I also find the following employees of Respondent to con-
stitute a unit4 appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees of its Van Bu-
ren, Arkansas plant, including truck drivers, but
EXCLUDING office clerical employees, plant clerical em-
ployees, guards, laboratory technicians, professional, em-
ployees, inspectors, supervisors as defined in the Act and
all other employees excluded by law.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a subsidiary of Westlake Chemical Corpora-
tion, operates several facilities throughout the United States,
including a plant in Van Buren, Arkansas, where it manufac-
tures polyvinyl chloride piping products. In addition to the
Van Buren facility, Respondent also has plants in Litchfield,
Illinois; Calvert City, Kentucky; Wichita Falls, Texas; Lake
Charles, Louisiana; Gelsmar, Louisiana; Booneville, Missis-
sippi; Greensboro, Georgia; Springfield, Kentucky; Evans-
ville, Indiana, Bristol, Indiana; Leola, Pennsylvania; and
Pawling, New York. The employees at Respondent’s Cal-
vert City, Kentucky facility are also represented by a labor
organization. The Union represents approximately 50 pro-
duction and maintenance employees at the Van Buren facil-
ity. The most recent contract between the Respondent and
Union was effective from November 20, 2001 to October 31,
2003. The agreement provides that the contract continues in
effect from year to year unless either party gives written
notice of a desire for changes in or termination of the agree-
ment at least 60 days prior to the anniversary date.
On October 7, 2003, Union Regional Director Jean Har-
vey sent a letter to Respondent, requesting the reopening of
the contract for the purpose of modification and amendment.
In a letter dated October 14, 2003, Steven Edwards; Respon-
dent’s Corporate Human Resources Manager, notified the
Union that its request to reopen the contract was untimely as
it was outside the requisite 60-day period. By letter dated
January 2, 2004, the Regional Director for Region 26 noti-
fied Respondent that a petition had been filed to decertify the
Union. On January 9, 2004, the Region notified all parties
concerning the status of the petition. Specifically, the Re-
gion’s letter explained that based upon the Union’s October
7, 2003 letter and Respondent’s October 14, 2003 letter, as
well as the Union’s failure to timely reopen the record, the
contract served as a bar to any election at that time.

4 In its answer to the consolidated complaint, Respondent admits
that there was a labor agreement between the Union and Respondent
for the period from November 20, 2001 through October 31, 2003.
While Respondent does not specifically admit the appropriateness of
the unit as alleged, there is no record evidence to the contrary.
NORTH AMERICAN PIPE CORP. 845
B. The Union’s Handbilling
Union Representative Ray McKinney testified that because
the Union missed the opportunity to negotiate in 2003, the Un-
ion began preparing for 2004 negotiations in June 2004. On
June 23, McKinney began distributing handbills to employees
in Respondent’s parking lot. Union Secretary/Treasurer Daleva
Sullentrup and Union President Steve Tabor accompanied him.
While Tabor is employed as a first shift operator at Respon-
dent’s Van Buren facility, he was not on duty on June 23.
There is no dispute that Plant Manager Danny Ming informed
Tabor and the union representatives to leave the parking lot and
to take their handbilling to the sidewalk. McKinney testified
that Ming informed him that if they did not leave the parking
lot, he would contact the police.
On June 24, Ming issued a memorandum to all employees
concerning the Union’s handbilling. In the memorandum,
Ming reminded employees that the contract provides that the
Union “shall be granted reasonable access to the working areas
of the plant, during working hours for the purpose of investiga-
tion of a grievance arising under the terms of this agreement.”
Ming explained that the contract does not allow the Union to
come onto plant property unannounced to conduct “their busi-
ness.” Ming not only referenced the company policy concern-
ing plant visitors, but also reminded employees “the Company
Solicitation policy protects you from being confronted by any-
one and asked to accept literature and/or participate in any non-
work related endeavor.”
In the memorandum, Ming also noted that some of the in-
formation distributed by the Union included the statement:
“Last year the company said that we didn’t need a raise.” Ming
explained that this was not true and that it was not the Com-
pany’s fault that the contract was not open for negotiation. He
went on to explain that it was the Union who failed to request a
new contract.
When Tabor again handbilled in the parking lot on June 30,
Ming asked him if he were soliciting. Tabor responded that he
was handing out leaflets. Ming told him to take his solicitation
to the sidewalk. Ming confirmed that he observed handbilling
in the parking lot on two to four occasions. He testified that he
did not recall if employees were present with the Union repre-
sentatives each time. He did recall at least one occasion when
Tabor was present with the union representatives. He acknowl-
edged that he asked Tabor and the representatives to leave the
parking lot and that he threatened to call the police if they did
not do so.
The record reflects that Tabor and McKinney additionally
handbilled in the parking lot in late August when Respondent’s
Manufacturing Manager Ray Dudley visited the Van Buren
plant. Dudley does not deny that he also told the handbillers to
refrain from handbilling in the parking lot. Tabor testified that
he and the other handbillers moved to the sidewalk after speak-
ing with Dudley.
C. The Union’s Grievance
On July 14, 2004, Tabor filed a grievance alleging: “Viola-
tion of National Labor Relations Act: Employer denying em-
ployee access to company parking lot to pass out union infor-
mation to fellow employees during the employee’s off time (off
the clock).” Ming responded to the grievance on July 16,
2004. In his written response, Ming explained that because
the plant parking lot is company property, it is covered under
the “no solicitation” policies maintained by “both the plant
and the Company.” In support of his position, Ming cited
not only the Van Buren “Plant Work Rules,” but also the
North American Pipe Corporation “Rules of Conduct” that
prohibits “solicitation on company premises without author-
ity or during regular work hours.” Additionally, Ming as-
serts that the North American Pipe Corporation “Rules of
Conduct” prohibits “starting or nurturing false, malicious
rumors or information about fellow workers, the company, or
its products.” Ming stated that the material5 distributed by
the Union was false and malicious. In further support of
Respondent’s position, Ming asserted that the contract re-
serves the right of management to require employees to ob-
serve Respondent’s rules and regulations not inconsistent
with the contract and he cited the contract section that gives
the Union reasonable access to the plant “for the purpose of
investigating grievances.”
After Respondent raised a timeliness defense to the proc-
essing of Tabor’s grievance, the Union withdrew the griev-
ance.
D. Respondent’s Corporate and Plant Rules
The plant rules for the Van Buren plant contain various in-
fractions for which disciplinary action may result. Section B
of the rules contains infractions that, depending upon the
severity, may lead to discipline ranging from a verbal warn-
ing to a disciplinary layoff. Item B. 12 provides:
SOLICITING OF OR BY EMPLOYEES FOR SALE OF
ANY ITEM OR THE COLLECTING OF FUNDS IS NOT
PERMITTED WITHOUT THE WRITTEN
AUTHORIZA-TION FROM THE PLANT MANAGER.6
The North American Pipe Corporation’s 2003 handbook
provides:
People are often annoyed by solicitation on the job. Such
activities can interfere with work or quality of our product.
Under the circumstances, we have established rules that
forbid solicitations (except those sponsored by the com-
pany) or the distribution of literature during work time and
in work places. Also, to keep work areas clean and orderly,
we cannot allow the distribution of literature in work ar-
eas.7
The 2003 employee handbook also lists a series of rules
for acceptable conduct. The handbook provides: “Failure to
abide by the rules can lead to some form of corrective action
up to and including discharge.” Included in the list of unac-
ceptable actions is: “Solicitation on company premises with-
out authority or during work hours.”8 Also listed as unac-
ceptable action is: “Starting or nurturing false, malicious

5 Ming specifically referenced the handbill’s language “the Com-
pany said that (employees) didn’t need a raise.”
6 GC Exh. 12.
7 GC Exh. 6, p. 37.
8 GC Exh. 6, p. 34.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD846
rumors or information about fellow workers, the company, or
its product.”9
E. Whether Respondent Maintained an Unlawful
No-Solicitation Policy
Paragraph 6 of the complaint alleges that since about Febru-
ary 25, 2004, Respondent has maintained a provision in its
corporate employee handbook that “solicitation on company
premises without authority or during regular work hours” con-
stitutes a violation of its Rules of Conduct.
As the Board reiterated in A.P. Painting & Improvements,
Inc., 339 NLRB 1206, 1207 (2003), “A rule that prohibits un-
ion solicitation or activities on ‘company time’ is overbroad
and presumptively invalid because it could reasonably be con-
strued as prohibiting solicitation at any time, including break
times or other nonwork times.” See also M.J. Mechanical Ser-
vices, Inc., 324 NLRB 812, 813 (1997); Gemco, 271 NLRB
1190 (1984). The long established principle is that a rule is
presumptively invalid if it prohibits solicitation on the employ-
ees’ own time. Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945). Additionally, the validity of a no-solicitation rule turns
on whether the prohibition applies only to time the employees
are working at their jobs. If so, the rule is presumptively valid.
If the prohibition, however, covers all working hours, the rule is
presumptively invalid. St. Mary Medical Center, 339 NLRB
381, 385 (2003).
Respondent does not dispute that the employee handbook
prohibits “solicitation on company premises without authority
or during regular work hours.” Respondent contends, however,
that such a statement in a bullet-point list of “unacceptable
actions” is merely a shorthand summary of the complete no-
solicitation, no-distribution rule found on a different page of the
employee handbook. Specifically, the section of the handbook
upon which Respondent relies includes: “People are often an-
noyed by solicitation on the job. Such activities can interfere
with work or quality of our product. Under the circumstances,
we have established rules that forbid solicitations (except those
sponsored by the Company) or the distribution of literature
during work time and in work places. Also, to keep work area
clean and orderly, we cannot allow the distribution of literature
in work areas.”
Respondent argues that its complete rule found on page 37 of
the employee handbook governs the short version cited on page
34 of the handbook. Relying upon Mediaone of Greater Flor-
ida, Inc., 340 NLRB 227 (2003), Respondent argues that the
Board has held under virtually identical facts that employees
would reasonably believe that a company’s no-solicitation pol-
icy would be that set forth in full in an employee handbook
rather than the handbook’s shorthand summary of the rule. As
in the present case, Mediaone dealt with an employee handbook
that included two sections pertaining to a prohibition for solici-
tation. In Mediaone, the employee handbook included a 35-
page section entitled “Business Integrity and Ethics Policies.”
There was not only a title page, but also a two-page table of
contents entitled “Business Integrity and Ethics Policies At a
Glance” that paraphrased each policy and listed the page num-

9 GC Exh. 6, p 35.
ber where the full policy could be found. One of the policies
paraphrased in the “At a Glance” section involved employee
solicitation, stating “You may not solicit employees on com-
pany property” and included the page number for the full
policy. The parties did not dispute that the full policy was
valid on its face. The Board determined that employees
would reasonably find that the respondent’s no solicitation
rule was the one referenced in the summary and not the
summary itself.
I find the facts of this case distinguishable from those in
Mediaone. In the instant case, the provision of the employee
handbook that prohibits solicitation “on company premises
without authority or during regular work hours” is listed as a
separate rule under the Rules of Conduct in the corporate
handbook. The preface to the Rules of Conduct states that
failure to abide by the listed rules can lead to some form of
corrective action up to, and including, discharge. Neither the
preface nor the Rules of Conduct reference the Solicita-
tion/Distribution of Literature found on page 37 of the hand-
book. Unlike Mediaone, there is nothing to direct employees
to a more fully explained or less restrictive solicitation pol-
icy. The lack of reference to a full and valid solicitation
policy prevents a finding that the provision at issue is simply
a shorthand summary of a valid rule. Interestingly, however,
the otherwise valid solicitation policy found on page 37 ref-
erences the fact that Respondent has established rules that
prohibit solicitations and thus arguably references the invalid
rule. Based upon the language found in both sections, there
is no reason to conclude that employees would reasonably
understand that the language found on page 37 is controlling
rather than the no solicitation policy on page 34 that threat-
ens discipline if violated. Thus, unlike the circumstances
found in Mediaone, the two handbook passages referencing
Respondent’s no-solicitation policy do not lend themselves
to interpretation as one solicitation policy.
The employee handbook provides on page 34 that solicita-
tion on company premises without authority or during regu-
lar work hours is an unacceptable action and is subject to
disciplinary action. In MTD Products, Inc., 310 NLRB 733
(1993), the Board found that an employer’s rule prohibiting
solicitation or distribution on company premises unless ap-
proved by the company to be presumptively invalid and
overly broad. The Board went on to explain that an em-
ployer can avoid the finding of a violation by showing
through extrinsic evidence that its rule was communicated or
applied in such a way as to convey an intent to clearly permit
solicitation during break time or other periods when employ-
ees are not actively working. See Our Way, Inc., 268 NLRB
394 (1993); T.R.W. Inc., 257 NLRB 442, 443 (1981). Re-
spondent has not only failed to make such a showing but the
evidence demonstrates that the Respondent specifically ap-
plied its overly broad no solicitation policy to Tabor’s activi-
ties while off duty and required him to leave company prop-
erty when he attempted to handbill on behalf of the Union.
Accordingly, I find that Respondent has maintained10 an

10 The overall evidence indicates that Respondent maintained this
solicitation policy for a period of more than 6 months prior to the
NORTH AMERICAN PIPE CORP. 847
overly broad rule against solicitation in violation of Section
8(a)(1) of the Act.
F. Whether Respondent Unlawfully Prohibited
Employees from Handbilling
Paragraph 7(a) of the complaint alleges that Plant Manager
Danny Ming on or about June 23 and June 30 prohibited an
employee from distributing union literature to other employees
on Respondent’s parking lot. Paragraph 7(b) alleges that Op-
erations Manager Ray Dudley, in late August prohibited em-
ployees from distributing union literature to other employees on
the Respondent’s parking lot. There is no factual dispute that
both Ming and Dudley asked Tabor to leave the parking lot
when he was handbilling for the Union. The issue, however, is
whether Respondent’s agents acted lawfully in this prohibition.
In response to the Union’s grievance, Ming stated that the
parking lot is company property and thus covered under the “no
solicitation” policies maintained by both the plant and the com-
pany. The Board has determined that a “no access” rule is valid
only if it (1) limits access solely with respect to the interior of
the plant [or] other working areas; (2) is clearly disseminated to
all employees; and (3) applies to off-duty employees seeking
access to the plant for any purpose and not just to those em-
ployees engaging in union activity. Except where justified for
business reasons, “a rule which denies off-duty employee entry
to parking lots, gates, and other outside nonworking areas will
be found invalid.” The Jewish Home for the Elderly of Fair-
field County, 343 NLRB 1069, 1081 (2004); Tri-County Medi-
cal Center, 222 NLRB 1089 (1976). Accordingly, Respondent
offered no justified business reason for requiring Tabor to leave
Respondent’s parking lot other than the application of its
unlawful no-solicitation rule.
Respondent argues that it lawfully prohibited employee Ta-
bor and Union Representative McKinney from distributing
Union literature on Respondent’s property in June 2004. Rely-
ing upon the Supreme Court’s decision in Lechmere, Inc. v.
NLRB, 502 U.S. 527, 532 (1992), Respondent asserts that the
Act confers Section 7 rights only on employees, not on unions
or their nonemployee organizers. Respondent argues that Sec-
tion 7 rights are not enlarged by the presence of an employee
during a nonemployee union representative’s distribution of
union literature on company property. Respondent further as-
serts that the nonemployee’s presence actually diminishes the
employee’s Section 7 rights. Citing NLRB v. Cranston Print
Works Co., 258 F.2d 206, 213 (4th Cir. 1958), Respondent
further asserts that an employee forfeits any special right to
enter an employer’s property, such as the employer’s parking
lot, and distribute union literature when the employee is ac-
companied by a nonemployee union representative. I note that
the case cited by Respondent dealt with the employer’s applica-
tion of a nondiscriminatory distribution rule to a nonemployee
union representative and an employee who was on an extended
leave of absence. Interestingly, the Court distinguished the

filing of the charge. The fact that Respondent maintained the rule
outside the 10(b) period does not serve as a defense to the violation, but
rather constitutes a “continuing violation.”
rights of access for the employee on a leave of absence with
those employees who were active employees.
More recently however, the Board has found in similar
circumstances that the presence of a nonemployee union
representative did not diminish an employee’s Section 7
rights. In Material Processing, Inc., 324 NLRB 719 (1997),
a nonemployee union representative handbilled with two or
three employees on company property. The employer’s plant
manager approached the union representative and informed
him that he could not remain on company property and the
union representative and the employees left in response to
the directive. The Board found that even if the plant man-
ager only addressed the union representative, it was reason-
able for the employees to believe that the plant manager was
addressing them as well and that the employer’s action con-
stituted a violation of Section 8(a)(1). Contrary to Respon-
dent’s argument, the presence of a nonemployee union repre-
sentative has not prevented the Board in finding a violation
of Section 8(a)(1) when an employer evicts employees while
engaged in protected activities. See Trailmobile Trailer,
Inc., 343 NLRB 95. 108 (2004). By contrast, I note that in
the instant case, Ming does not deny that he not only asked
Tabor to leave the parking lot, but that he also threatened to
call the police if he did not. Dudley acknowledged that when
he asked the union representative to leave the parking lot in
late August, two other individuals who “had papers in their
hands” accompanied the representative. Accordingly, I do
not find that McKinney’s presence diminished employees’
Section 7 rights as asserted by Respondent.
Respondent also argues that a union may waive certain so-
licitation and distribution rights through a collective-
bargaining agreement. Citing NLRB v. United Techs Corp.,
706 F.2d 1254, 1263–1264 (2d Cir. 1983), Respondent ar-
gues that the Second Circuit has held that if employees are
free to engage in solicitation during nonworking times, the
union has power to bargain away employee rights to engage
in solicitation at other times. I note however, that in United
Techs Corp., there was a contract provision that banned so-
licitation of union membership or conducting union business
on “working hours.” The court noted that the provision had
been included in the collective-bargaining agreement for
many years and that the term “working hours” had been in-
terpreted by all concerned, as well as by an arbitrator 25
years before. The court observed that based upon the testi-
mony at trial, arbitration decisions, and past practice, there
was no ambiguity as to “working hours.” Respondent asserts
that it does not maintain or enforce a total ban on union so-
licitation and distribution. Respondent asserts that its rule,
which it adopted pursuant to a management functions provi-
sion in the agreement, allows solicitation and distribution
during nonworking time and in nonworking areas. Despite
Respondent’s assertion, however, the record evidence re-
flects that during this same period of time, Respondent main-
tained a rule prohibiting “solicitation on company premises
without authority or during regular work hours.” As dis-
cussed above, I find this to be an unlawful no solicitation
rule. Unlike the circumstances found in United Techs Corp.,
there is no evidence that the Union has waived any Section 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD848
rights by the existence of the management functions clause.
Based upon the total record evidence, I find that Respondent
violated Section 8(a)(1) by unlawfully prohibiting employees
from engaging in activity protected by Section 7 of the Act in
June and late August and as alleged in complaint paragraph
sections 7(a) and (b).
G. Whether Respondent Disparately Enforced a Provision
of its Employee Handbook
Respondent’s corporate employee handbook includes the fol-
lowing language:
Rules, Regulations and Procedures for the acceptable conduct
of employees are necessary for the benefit and protection of
the rights and safety of all employees and for the orderly op-
eration of our business. These rules are normally things that
are to be done or things not done in order to have acceptable
conduct. Failure to abide by these rules can lead to some
form of corrective action up to and including discharge.
In addition to the invalid solicitation rule previously discussed,
the list also includes:
Starting or nurturing false, malicious rumors or information
about fellow workers, the company, or its products.
Complaint paragraph 8(b) alleges that about July 16, 2004,
Respondent, by Danny Ming, enforced the rule selectively and
disparately by citing the rule in response to the Union’s July 14,
2004 grievance.
Respondent argues that Section 7 of the Act does not protect
distribution of maliciously false information. In support of its
position, Respondent cites the Board’s ruling in Sprint/United
Management Co., 339 NLRB 1012 (2003) wherein an em-
ployee sent an e-mail to employees on November 21, 2001,
stating that anthrax had been confirmed at the employer’s facil-
ity. Board Member Liebman noted that the timing and context
of the email could not be ignored as it occurred in the midst of
widely publicized anthrax deaths and contamination incidents.
The Board affirmed the administrative law judge in finding that
the e-mail was sent with deliberate falsity and the employee’s
actions were outside the protection of the Act. Respondent also
cites Simplex Wire & Cable Co., 313 NLRB 1311, 1313, 1315
(1994), in which the Board found that a rule prohibiting “false
or malicious” statements unduly restricted employees’ Section
7 rights because it prohibited merely false statements, as op-
posed to maliciously false statements. Respondent argues that
by contrast, its maintenance of a rule prohibiting maliciously
false statements does not interfere with Section 7 rights.
Relying upon the Board’s decision in Sprint/United Man-
agement Co., Respondent argues that a statement is “mali-
ciously false” and loses Section 7 protection if it is made with
knowledge that it is false or with reckless disregard for the truth
or falsity of the statement. Respondent’s counsel argues that the
Union’s handbill stated “Last year the company said that we
didn’t need a raise” and thus wrongly implied that Respondent
was responsible for the lack of a wage increase. Counsel fur-
ther argues that Tabor and McKinney distributed the handbill
with full knowledge of their falsity or with reckless disregard
for their truth or falsity because they knew that Respondent had
never made that statement and that the labor agreement auto-
matically renewed because of the Union’s failure to timely
request reopening for bargaining.
Citing NLRB v. E.I. DuPont de Nemours, 750 F.2d 524,
528 (6th Cir. 1984), Counsel for the General Counsel argues
that in determining whether an employer has unlawfully
interfered with an employee’s Section 7 rights, the Board
considers the total context in which the challenged conduct
occurs and is justified in viewing the issue from the stand-
point of its impact upon the employees. Counsel for the
General Counsel asserts that the Respondent and the Union
disagreed as to who was to blame for the unit employees not
receiving wage increases in 2003. While counsel for the
General Counsel concedes that the Union’s literature sug-
gests the Respondent was at fault, Counsel also submits that
Ming’s June 24 memo to employees states that the Union
“forgot” about employees.
In its 1953 decision in Electrical Workers, IBEW Local
1229 (Jefferson Standard), 346 U.S. 464 (1953), the Su-
preme Court held that employees may engage in communica-
tions with third parties in circumstances where the communi-
cation is related to an ongoing labor dispute and when the
communication is not so disloyal, reckless, or maliciously
untrue to lose the Act’s protection. Thirteen years later, the
Court reiterated that nonmalicious false statements could be
protected in the context of a union/management dispute. The
Court noted that the Board has given wide latitude to com-
peting parties in a labor dispute and does not “police or cen-
sor propaganda,” but “leaves to the good sense of the voters
the appraisal of such matters, and to opposing parties the task
of correcting inaccurate and untruthful statements.”11 Linn v.
United Plant Guard Workers of American, Local 113, 383
U.S. 53 (1966). In its decision in Emarco, Inc., 284 NLRB
832 (1987), the Board found that employees’ remarks about
their employer to be an extension of a legitimate and ongoing
labor dispute. The remarks, however, included such state-
ments as “these people never pay their bills” and “it will take
a couple of years to finish the job.” The Board noted that the
definition of labor dispute under Section 2(9) of the Act in-
cludes “any controversy concerning terms, tenure or condi-
tions of employment.” The employees’ failure to specifically
reference the labor dispute in their remarks did not remove
their remarks from the protection of Section 7 of the Act.
General Counsel argues that Respondent’s rule prohibiting
starting or nurturing false and malicious rumors or informa-
tion was applied in the context of employees engaging in
protected concerted activity, specifically that akin to union
organizing. General Counsel submits that inasmuch as there
was a dispute between management and labor concerning
who was responsible for employees not receiving a raise, the
Union’s statement is protected speech within the framework
of the Supreme Court’s Linn decision. As Counsel for the
Union points out in his brief, a statement must be made “with
knowledge that it was false or with reckless disregard for the
truth” in order for it to lose the Act’s protection and “overen-

11 Stewart-Warner Corp., 102 NLRB 1153, 1158 (1953).
NORTH AMERICAN PIPE CORP. 849
thusiastic use of rhetoric” is protected. Long Island College
Hospital, 327 NLRB 944, 947 (1999).
The Union argues that even though the Union failed to give
adequate notice of its desire to negotiate a successor contract,
Respondent could have nonetheless negotiated a wage increase
and by doing so was blameworthy for the lack of a raise. While
such an expectation appears to be not only unrealistic, but also
highly improbable under such circumstances, the Union’s
handbill did not, however, offer this potential explanation to
employees. The handbill attributed the lack of a raise to the
employer by stating “Last year the company said that we didn’t
need a raise.” In response, Ming issued a memorandum to
employees on June 24, explaining that the union’s statement
was not true and that contract negotiations were not instituted
in 2003 because the Union failed to request a new contract.
Ming went on to explain that the company unsuccessfully tried
to get the National Labor Relations Board to agree that there
had been no contract renewal.
Based upon the total record evidence, it is apparent that the
statements in the Union’s handbill were clearly in the context
of a labor/management dispute. As envisioned by the Court in
Linn, Respondent quickly corrected any inaccuracy and pre-
sented a full explanation of Respondent’s position for employ-
ees. While arguably inaccurate, the Union’s statement is noth-
ing more than an overenthusiastic use of rhetoric rather than a
deliberately malicious statement designed to publicly disparate
Respondent’s product or to undermine its reputation. Richboro
Community Mental Health Council, 242 NLRB 1267, 1268
(1979). While the Union’s statement may be misleading as to
why employees did not receive a 2003 wage increase, the re-
cord does not reflect that the handbill was distributed with a
malicious intent or as a part of a design to deliberately falsify.
San Juan Hotel Corp., 289 NLRB 1453, 1455 (1988); Veeder
Root Co., 237 NLRB 1175, 1177 (1978). Accordingly, I do not
find that the Union’s handbill lost the protection of the Act as
argued by Respondent.
Having found that the handbill did not lose the protection of
Section 7 of the Act, the question turns to whether Respondent
selectively and disparately enforced the rule in its response to
the Union’s grievance. Ming testified that there had been no
other occasions when he applied the rule prohibiting “starting
or nurturing false, malicious rumors” as contained in the em-
ployee handbook. He also testified that one of the reasons that
he had not allowed Tabor to handbill in the parking lot was the
fact that he received complaints from two employees that the
Union was bothering them with the distribution of the hand-
bills. While he identified Chris Wiggins as one of the employ-
ees who complained, he could not recall the other employee.
Chris Wiggins did not testify and there was no other corrobora-
tion of Ming’s testimony with respect to employee complaints.
Ming acknowledged that he did not question Tabor or McKin-
ney concerning the alleged complaint.
The total record evidence demonstrates that Respondent’s
enforcement of its prohibition concerning false and malicious
rumors was responsive to the employees’ distribution of the
Union handbills and activity that was protected by Section 7 of
the Act. Admittedly, this provision of the handbook had not
previously been enforced. Accordingly, I find that Respondent
selectively and disparately enforced its rule in violation of
Section 8(a)(1) of the Act.
H. Whether Respondent Unlawfully Granted Stock
to Unit Employees
Paragraph 10 of the complaint alleges that on about Au-
gust 16, 2004 Respondent awarded 100 shares of stock to
unit employees without prior notice to the Union and without
affording the Union an opportunity to bargain with respect to
the conduct. There is no factual dispute that the shares of
stock were awarded to employees without prior notice to or
bargaining with the Union. Respondent asserts, however,
that the stock award was a gift to employees and not subject
to mandatory bargaining.
As referenced above, Respondent has 12 other manufac-
turing facilities in the United States in addition to its facility
in Van Buren Arkansas. As also noted above, a union also
represents the employees at Respondent’s Calvert City, Ken-
tucky facility. On August 16, 2004, Westlake Chemical
Corporation, Respondent’s parent company, announced in an
interoffice memorandum to all regular, full-time employees
that it would award 100 shares of stock to each eligible em-
ployee. This announcement was made in conjunction with
Westlake’s initial public stock offer (IPO) that occurred on
August 11, 2004. Respondent informed employees in the
memorandum that the stock was given in recognition of the
historic company event and the significant contribution made
by each employee toward the growth and success of the
company. Respondent told employees that the stock was
given in appreciation for their efforts. All regular, full-time
employees with at least 6 months of service as of August 16
were eligible to receive this one-time stock award. Respon-
dent maintains that the award was not linked to remuneration
or an individual employee’s job performance, and Westlake
awarded the stock based on its financial condition after the
IPO. Respondent argues that because the stock was a gift, it
was not obligated to engage in bargaining with the Union
before issuing the shares to employees. There is no dispute
that the stock was given to all eligible employees at all of the
Respondent’s facilities. Respondent does not dispute that it
awarded the stock to employees without notice to or bargain-
ing with the unions that represented employees at other fa-
cilities.
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer “to refuse to bargain collectively with the
representatives of its employees.” The Supreme Court has
interpreted Section 8(d) of the Act to require the employer
and the union to bargain with each other in good faith with
respect to wages, hours, and other terms and conditions of
employment. NLRB v. Borg-Warner Corp., 356 U.S. 342,
349 (1958). The Court further noted, however, that as to
other matters, each party is free to bargain or not to bargain,
and to agree or not to agree. Ibid. Accordingly, the initial
issue with respect to Respondent’s unilateral awarding of
stock to employees is a determination as to whether the
granting of stock to employees was a mandatory subject of
bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD850
The Board and courts have held that gifts per-se payments
that do not constitute compensation for services are not terms
and conditions of employment. If such gifts, however, are so
tied to the remuneration that employees receive such awards for
their work, such gifts are considered wages and within the stat-
ute. Ross Sand Co. 219 NLRB 915 (1975); NLRB v. Harrah’s
Club, 403 F.2d 865, 874 (9th Cir. 1968); NLRB v. Wonder State
Mfg. Co., 344 F.2d 210, 213 (8th Cir. 1965).
In the instant case, all employees, including hourly employ-
ees, supervisors, and management employees, were given a
one-time award of 100 shares of stock based upon Respon-
dent’s initial public offering. There was no evidence that any
other such award was planned or even anticipated for employ-
ees.12 The award was not based upon seniority or productivity.
The only eligibility requirement was employment of at least 6
months duration prior to August 16, 2004.13 There is no evi-
dence that the stock award was a gift made to employees over a
substantial period of time or based upon their respective wages.
All individuals received the same amount of stock regardless of
whether they were at the highest level of management or the
lowest paid hourly employee. The stock award was given to all
eligible employees regardless of their work performance, earn-
ings, seniority, production, or other employment related factors.
Accordingly, I find that the stock award given to employees on
August 16, 2004 constituted a gift and was not a mandatory
subject of bargaining that required notice to or bargaining with
the Union. See Stone Container Corp., 313 NLRB 336, 337
(1993); Benchmark Industries, Inc., 270 NLRB 22 (1984), enfd.
724 F.2d 974 (5th Cir. 1984). Accordingly, I do not find the
Respondent’s unilateral award of stock shares to its employees
to constitute a violation of Section 8(a)(5) as alleged.
Respondent argues that even if the stock award was not a gift
to employees, “the Union waived the right to bargain over wage
increases.” Article IX of the collective-bargaining agreement
provides:
Wages and rates of pay for the duration of this contract shall
be shown by Exhibit A, attached and made a part of this
Agreement. The rates of pay specified in Exhibit A are rates
which the Company is contractually obligated to pay, but
nothing in this Agreement shall be construed as preventing
the Company in its discretion from paying employees in a de-
partment a higher rate and/or improving a benefit (whether it
be an enhancement of the current benefits or a reduction in the

12 In United Shoe Machinery Co., 96 NLRB 1309 (1951), the Board
found that the employer’s long-established policy and method of grant-
ing 10 shares of common stock to every employee with at least 25 days
of service was an emolument of value that was earned by reason of the
employment relationship.
13 In Richfield Oil Corp., 110 NLRB 356 (1954), the Board found
that employees’ membership in a stock option plan was a mandatory
subject of bargaining. In addition to the requirement that membership
was limited to employees, the Board also found significant the long
term accumulation of stock for future needs as well as the provision
that the benefits were based upon the employees’ length of service as
well as the employees’ amount of wages while participating in the plan.
The Board also noted that employees who were members of the plan
performed their work under a pledge from the employer of future pay-
ments in the form of company stock as well as ordinary wages.
premium contribution) than the employees in the depart-
ment would otherwise be entitled to under this Agreement.
Respondent also relies upon the language found in article
XIX providing:
Section 2. The parties acknowledge that during the nego-
tiations which resulted in the Agreement, each has had the
unrestricted right and opportunity to present demands and
proposals with respect to any matter subject to collective
bargaining. Therefore, the Company and the Union freely
agree that during the period of this Agreement, neither part
shall be obligated to bargain with respect to wages, pen-
sions, or other fringe benefits in view of the fact that such
matters were taken into consideration in settlement of the
issues discussed during negotiations, or with respect to not
covered or referred to in this Agreement, except in the
manner specified herein.
In support of its position that the Union waived its right to
bargain about the stock award, Respondent cites the Board’s
rulings in Johnson-Bateman Co., 295 NLRB 180 (1989) and
EPI Corp., 279 NLRB 1170 (1986). In Johnson-Bateman
Co., the collective-bargaining agreement provided that while
the wage rates were set forth in the agreement, it was not to
be construed as preventing the employer from paying or the
employee accepting additional pay or benefits. The em-
ployer unilaterally implemented an attendance incentive
bonus. The Board found that contractual language was suffi-
ciently clear and specific to establish that the union contrac-
tually waived its right to bargain about the attendance incen-
tive bonus. The Board further observed that there was no
record evidence that the parties discussed this particular con-
tract provision during negotiations for the existing collective-
bargaining agreement. The language in issue had been in
each successive contract for 26 years and neither party pro-
posed any changes in the language during negotiations for
the current contract. Accordingly, the Board found that the
union waived its bargaining rights on this subject based on
the express contractual language.
In EPI Corp., 279 NLRB 1170, 1173–1174 (1986), the
parties negotiated a labor agreement containing a “zipper
clause” specifying “all aspects of wages, hours or working
conditions which are not covered by this Agreement may be
changed, altered, continued, or discontinued without consul-
tation with the Union.” The Board noted that while it was
not apparent that the parties specifically addressed the issue
of midterm adjustments in the health program during con-
tract negotiations, the evidence reflected that the parties ne-
gotiated a complete agreement. In summary, the Board
found that the union waived its interest in bargaining with
respect to the carrier-induced changes in the employees’
health benefit plan.
The Union argues that while the collective-bargaining
agreement permits Respondent to improve existing, ongoing
compensation programs on a department-wide basis, it does
not permit one time, plant-wide gifts. The Union acknowl-
edges that the employer prevailed in Johnson-Bateman,
where, although the contract broadly permitted additional
pay, the employer paid only merit increases to individual
NORTH AMERICAN PIPE CORP. 851
employees. The Union argues that by comparison to Johnson-
Bateman, the Board’s rulings in Register-Guard14 and C & C
Plywood Corp.15 reflect that the Board narrowly construes con-
tract language granting an employer the right to discretionarily
increase compensation. The contractual language in Register-
Guard not only provides that the employer may pay wages in
excess of the minimum wage but also specifically addresses the
granting and reducing of merit pay. In reviewing the case, the
Board considered the fact that at an impasse and throughout
negotiations, the wage scale was a point of contention. During
impasse, the employer upwardly adjusted wage scales for a
portion of the employer’s employees. The adjustment was not
based upon merit increases but was based upon a local person-
nel survey. There was no bargaining about the employer’s
decision to award the increases, which represented the first time
that the employer unilaterally increased the wages of an entire
classification of employees above contract scale. The Board
concluded that the contract language afforded the employer
discretion to increases for particular individuals over the wage-
scale minimum for their classification rather than the general
wage increases for an entire classification of employees.
In C & C Plywood Corp., above, the parties negotiated a col-
lective-bargaining agreement providing that the employer re-
served “the right to pay a premium rate over and above the
contractual classified wage rate to reward any particular em-
ployee for some special fitness, skill, aptitude, or the like.”
Without bargaining with the union, the employer subsequently
awarded premium pay to a classification of employees provided
that they met certain production standards. The Board held that
the union did not waive its bargaining right because the clause
granted the employer only the right to make individual merit
increases for special competence and skill. The Board did not
find the award to be premium pay within the meaning of the
contractual language, but rather a change in wages made de-
pendent upon a production basis rather than hourly rates agreed
upon with the union.
The Union acknowledges that its contract with the Respondent
permits Respondent to give more general discretionary compen-
sation increases than the language in Register-Guard or in C & C
Plywood. The language provides that nothing in the agreement
“shall be construed as preventing the Company in its discretion
from paying employees in a department a higher rate and/or im-
proving a benefit (whether it be an enhancement of the current
benefits or a reduction in the premium contribution) than the
employees in that department would otherwise be entitled to
under this Agreement.” The union argues, however, that as in
Register-Guard and C & C Plywood,16 Respondent overstepped
its contractual bounds by providing a benefit to almost every
employee, rather than by providing an improvement limited to
specific departments. The Union argues that the contract lan-
guage should be interpreted to allow Respondent to discretion-
arily improve only existing wage rates and existing benefits.

14 301 NLRB 494, 495 (1991).
15 148 NLRB 414, 417 (1964), enf. denied 351 F.2d 224 (9th Cir.
1965), revd. and remanded 385 U.S. 421 (1967).
16 148 NLRB 414, 417 (1964), enf. Denied 351 F.2d (9th Cir. 1965),
revd. and remanded 385 U.S. 421 (1967).
While the Union maintains that the contract provision implies
that Respondent is limited to improving only an existing bene-
fit, I do not find the language limited to such specificity.
The Union submits: “The 100 stock shares are a brand
new benefit. It is not an improvement of a current benefit.
There is no similar existing program. There are no references
to stock giveaways in any contract article. Moreover, it is a
one-time gift. The employees do not continue to enjoy the
benefit into the future.” As discussed in detail above, I
agree, and as discussed above I find that as a gift, the stock
award was not a mandatory subject of bargaining. In the
event that the stock award is not found to be a gift, the record
nevertheless reflects that such increase in benefits was per-
missible under the express contractual provision as found by
the Board in Johnson-Bateman Co., supra, at 189. The fact
that the stock award occurred but once does not negate its
constituting an increase in benefits as expressly provided in
the contractual language.
While the express language in article XI may constitute a
waiver with respect to Respondent’s obligation to bargain
about the stock award, I do not find the “zipper clause” con-
tained in [article] XIX as an effective waiver of the Union’s
right to bargain about the stock award. The contractual lan-
guage provides: “The parties acknowledge that during the
negotiations which resulted in the Agreement, each has had
the unrestricted right an [sic] opportunity to present demands
and proposals with respect to any matter subject to collective
bargaining. Therefore, the Company and Union freely agree
that during the period of this Agreement, neither party shall
be obligated to bargain with respect to wages, pensions, or
other fringe benefits in view of the fact that such matters
were taken into consideration in settlement of the issues dis-
cussed during negotiations; or with respect to any matter or
subject not covered or referred to in this Agreement, except
in the manner specified herein.” While the parties may have
had an opportunity to bargain during negotiations, there was
no contemplation of stock distribution at the time of negotia-
tions and no evidence of any discussion with the Union of
any possibility of stock distribution. Accordingly, I do not
find article XIX to constitute a waiver with respect to the
stock shares award.17
Accordingly, I do not find that Respondent unilaterally
granted the stock shares in violation of Section 8(a)(5) and
(1) of the Act.
I. Whether Deferral of the Complaint Issues is Appropriate
On December 14, 2004, Respondent filed a motion for
summary judgment in this matter. In its motion, Respondent
asserts that the matters involved in the complaint are more
appropriately suited for the grievance-arbitration process as
contemplated by the Board in its decision in Collyer Insu-
lated Wire, 192 NLRB 837 (1971). On January 4, 2005, the
Union filed a memorandum in opposition to Respondent’s
motion for summary judgment. By letter dated January 5,
2005, the Board’s Associate Executive Secretary informed

17 Michigan Bell Telephone Co., 306 NLRB 281 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD852
the Union that its memorandum18 had not been timely filed and
could not be forwarded to the Board for consideration. The
motion is pending before the Board.
Respondent argues that the issues raised in the complaint are
contractual and thus the interpretation and application of provi-
sions of the collective-bargaining agreement are in dispute.
Respondent asserts that while the complaint alleges that it vio-
lated Section 8(a)(1) of the Act by maintaining and enforcing a
no-solicitation rule found in Respondent’s handbook, Respon-
dent argues that it had a contractual right to promulgate and
enforce this rule. Further, Respondent points out that while its
unilateral award of 100 shares of stock is alleged as a violation
of Section 8(a)(5) of the Act, Respondent was allowed to do so
based upon the language of the contract.
Respondent relies upon a number of cases where the Board
has deferred to the grievance-arbitration process. Respondent
asserts that in Caritas Good Samaritan Medical Center, 340
NLRB 61, 64–65 (2003), the Board found that the parties’
agreement was not free from ambiguity and found that the dis-
pute concerning the employer’s unilaterally changing unit em-
ployees’ health insurance was a matter of contract interpreta-
tion. The dispute involved in Radioear Corp., 199 NLRB 1161
(1972) involved an employer’s unilaterally terminating an an-
nual bonus paid to employees. The employer argued that dur-
ing negotiations the union tried to get a clause preserving all
existing benefits and the union argued that there was no intent
for the employer to be able to unilaterally discontinue a benefit.
The Board determined that interpretation of the “zipper clause”
and the collective-bargaining agreement was at the heart of the
dispute, and deferred the matter to arbitration. The Board rea-
soned that an arbitrator could consider “(a) the precise wording
of, and emphasis placed upon, any zipper clause agreed upon;
(b) other proposals advanced and accepted or rejected during
bargaining; (c) the completeness of the bargaining agreement as
an ‘integration’-hence the applicability or inapplicability of the
parole evidence rule; and (d) practices by the parties, or other
parties, under other collective-bargaining agreements.”
Respondent contends that the issues involved in this case are
appropriate for deferral because the complaint allegations deal
with the Respondent’s contractual right to promulgate and en-
force rules in the employee handbook and whether Respondent
is permitted to unilaterally grant a stock award to employees.
In essence, Respondent argues that an interpretation of the con-
tractual language will resolve these issues and thus, a matter
appropriate for deferral to the grievance-arbitration procedure.
Contrary to Respondent’s argument, I do not find the issues
involved herein, appropriate for deferral.
There is certainly no question that the parties negotiated and
agreed to resolve disputes regarding the application or interpre-
tation of the agreement through arbitration. Article XII of the
collective-bargaining agreement sets forth the procedure for
resolution of disputes through the grievance-arbitration proce-
dure. In its decision in Collyer Insulated Wire, supra, the
Board found deferral appropriate when: (1) the dispute arose

18 The Union’s December 27, 2004 e-mail request for an extension
of time to file its opposition was not recognized by the Associate Ex-
ecutive Secretary as complying with requisite Board procedures.
within the confines of a long and productive collective-
bargaining relationship; (2) there was no claim of employer
animosity to the employees’ exercise of protected rights; (3)
the parties’ contract provided for arbitration in a very broad
range of disputes; (4) the arbitration clause clearly encom-
passes the dispute at issues; (5) the employer has asserted its
willingness to utilize arbitration to resolve the dispute; and
(6) the dispute is eminently well-suited to resolution by arbi-
tration. Respondent asserts that deferral is appropriate in this
matter because all of the criteria have been met.
While a number of these criteria have been met, it does
not appear that deferral in this case is appropriate. As dis-
cussed above, Respondent argues that it was permitted to
grant the stock award to employees because the award con-
stituted a gift and not a mandatory subject of bargaining.
Accordingly, Respondent argues that it has not violated Sec-
tion 8(a)(5) of the Act by failing to bargain with the repre-
sentative of its employees as required by the Act. This ques-
tion is resolved by statutory interpretation. While Respon-
dent argues that it was contractually permitted to promulgate
and enforce rules in the employee handbook, the lawfulness
of Respondent’s solicitation provision also involves a matter
of statutory interpretation.
The Board’s policy against deferral in matters of statutory
interpretation is well established. Avery Dennison, 330
NLRB 389, 390 (1999). Generally, the Board does not defer
an issue to arbitration that involves the application of statu-
tory policy, standards, and criteria, rather than the interpreta-
tion of the contract itself. The Board has specifically noted
that questions of statutory construction, as distinguished
from contract interpretation, are legal questions concerning
the National Labor Relations Act, and thus are within the
special competence of the Board rather than an arbitrator.
Carpenters (Mfg. Woodworkers Assn.), 326 NLRB 321, 322
(1998).
The lawfulness of Respondent’s maintenance and en-
forcement of its solicitation rule is in issue, as is the lawful-
ness of Respondent’s granting the stock shares to its employ-
ees. An interpretation of the contract will not resolve the
legal questions in issue. I note also that even if one of these
issues are found to be appropriate for arbitration, Board pol-
icy does not favor bifurcation of proceedings that involve
related contractual and statutory questions because of the
inefficiency and possible overlap that may occur from the
consideration of certain issues by both the Board and the
arbitrator. Sheet Metal Workers Local 17 (George Koch
Sons), 199 NLRB 166, 168 (1972).19 Additionally, there is
no guarantee that an arbitrator will look beyond the contract
and consider statutory principles. Carpenters (Novinger’s
Inc.), 337 NLRB 1030, 1034 (2002).

19 The complexity of issues in this case are distinguishable from
those in Wonder Bread, 343 NLRB 55, 57 (2004) that involved an
employer’s unilateral implementation of a physical examination for
certain of its employees. The Board found that the employer’s reli-
ance upon the management-rights clause for its action created a
dispute as to the interpretation of the collective-bargaining agree-
ment.
NORTH AMERICAN PIPE CORP. 853
A key element of the Board’s deferral policy is the parties’
expressed willingness to waive contractual time limitations in
order to ensure that the merits of the dispute are addressed.
Hallmor, Inc., 327 NLRB 292, 293 (1998). The Union asserts
that the allegation that Respondent prohibited an employee
from distributing handbills in the parking lot is not deferrable
because the Respondent pursued its timeliness objection into
the arbitration procedure. During the course of the grievance
processing, Respondent asserted that the Union did not timely
appeal the step-two response from the plant manager. While
Respondent later agreed to proceed to arbitration, Respondent
sought to also include timeliness as an issue for the arbitrator.
By letter dated August 31, 2004, the Union informed Respon-
dent that inasmuch as Respondent persisted in challenging the
grievance’s timeliness, the Union desired that the matter be
resolved by the National Labor Relations Board and informed
Respondent that the Union would take no further steps pursuant
to the contact’s grievance arbitration procedure. By letter dated
September 8, 2004, Respondent informed the Union that de-
spite the Union’s letter of August 21, 2004, proceeding to arbi-
tration was mandatory under the terms of the contract. Re-
spondent sent a follow-up letter to the Union on October 8,
2004, reiterating that it had agreed to proceed to arbitration on
the grievance. Respondent did not, however, retract its desire
to have the arbitrator consider the timeliness issue of the Un-
ion’s grievance. Eventually, rather than waive timeliness, Re-
spondent agreed that the grievance be withdrawn from arbitra-
tion, after the parties had chosen an arbitrator.
Respondent asserts in its brief that it is willing to arbitrate
these matters and waives any time limits or procedural defects
and agrees to submit all aspects of the dispute to arbitration.
While Respondent may assert that it will waive the timeliness
provision of the contract to present the matter to the arbitrator,
Respondent does not assert that it will not pursue the initial
timeliness issue as one of those issues to be submitted to the
arbitrator. Thus, it appears that despite Respondent’s assertion
that all elements for deferral have been met; Respondent’s chal-
lenge to the timeliness of the initial grievance may foreclose an
arbitrator’s reaching the merits of the issues in dispute. See
Southwestern Bell & Telephone Co., 276 NLRB 1053 fn. 1
(1985); Victor Block, Inc., 276 NLRB 676, 680 (1985).
Citing Beverly Health & Rehabilitation Services, 332 NLRB
347, 349 (2000), counsel for the General Counsel also asserts
that where an employer has maintained an illegal handbook at
multiple locations, the appropriate remedy should include a
posting at every facility where the rule has been in effect.
Counsel for the Union submits that the solicitation rule allega-
tion is not deferrable because an arbitrator can impose no rem-
edy at Respondent’s facilities other than the Van Buren facility.
Citing Clarkson Industries, 312 NLRB 349, 351–352 (1993),
the Union further argues that when an arbitrator is unable to
provide a sufficient remedy, deferral is inappropriate.
Having considered the arguments advanced by counsel for
the General Counsel, Respondent, and the Union, I find that
deferral is not appropriate in this case and recommend accord-
ingly.
J. The Appropriate Remedy for Respondent’s Overly Broad
No-Solicitation Rule
Citing a number of cases, the Union submits that where an
employer has maintained an illegal handbook at multiple
locations, the remedy should include a posting at every facil-
ity where the rule has been in effect. Jack in the Box Center
Systems, 339 NLRB 340 (2003); Raley’s, 311 NLRB 1244,
fn. 2 (1993); Kinder-Care Learning Centers, 299 NLRB
1171, 1176 fn. 33 (1990). There is no dispute that Respon-
dent’s rule prohibiting solicitation on company premises
without authority or during regular work hours has been
maintained in Respondent’s corporate employee handbook.
Respondent does not dispute that this handbook was distrib-
uted to employees at facilities other than the Van Buren
plant.20 Based upon the total record evidence, it appears
appropriate to require the rescission of the overly broad no
solicitation provision, and the posting of the notice coexten-
sive with Respondent’s application of its handbook.21
The Union also argues that in addition to the required
posting, Respondent should be ordered to notify employees
in writing that the unlawful rule is no longer in effect. Cer-
tainly, the Board has found it appropriate to require an em-
ployer to publicize the rescission of an unlawful rule in the
same fashion that the unlawful rule was publicized. Ark Las
Vegas Restaurant Corp., 335 NLRB 1284, 1285 fn. 7 (2001);
Marriott Corp., 313 NLRB 896 (1994). Steven Edwards;
manager of corporate human resources, testified that on De-
cember 2, 2004, Respondent posted at its Van Buren facility
a memorandum to employees concerning Respondent’s so-
licitation rules. In the notice, Respondent informed employ-
ees that the solicitation policy in the local plant rules was
rescinded. Additionally, Respondent notified employees that
the employee handbook provision would immediately read as
follows:
The performance of our employees and the quality of our
product can be adversely affected by solicitation or the dis-
tribution of literature. Therefore, solicitation during work
time and the distribution of literature during work time or
in work areas are prohibited.
The memo stated that effective immediately the provision
regarding solicitation in the Rules of Conduct “is revised to
read as follows:”
Solicitation during work time, or distribution of literature
during work time or in work areas.
Edwards explained that this memorandum was posted on
the bulletin board at Van Buren as well as the bulletin boards
at Respondent’s other facilities. Edwards acknowledged that
while there had been a posting of the rescission and modifi-
cation of the solicitation and distribution policy, there was no

20 In his testimony, Ming asserted that he relied upon the local
plant rules rather than the corporate employee handbook. In his July
16, 2004 written response to the Union’s grievance, however, he
referred to the corporate rules of conduct prohibiting “solicitation on
company premises without authority or during regular work hours.”
21 Jack in the Box Distribution Center Systems, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD854
distribution to individual employees. He also testified that he
was unaware of any meetings with employees to discuss the
rescission and modification of the rules. It appears therefore,
that an appropriate remedy would require Respondent to dis-
seminate the modification of its solicitation and distribution
policy in the same manner in which the original unlawful pol-
icy was disseminated to employees. Accordingly, an appropri-
ate remedy would also require Respondent to notify all of its
employees, to whom the handbook was disseminated, individu-
ally, in a separate document from the posting, that the unlawful
rule has been rescinded and modified.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by main-
taining, giving effect to, and enforcing an overly broad no so-
licitation rule prohibiting solicitation on company premises
without authority or during regular work hours.
4. Respondent violated Section 8(a)(1) of the Act by selec-
tively and disparately enforcing a facially valid employee rule.
5. Respondent violated Section 8(a)(1) of the Act by prohib-
iting employees from distributing Union literature to other em-
ployees on Respondent’s parking lot.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act in any other manner as
alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I have found that Respondent unlawfully maintained and en-
forced an overly broad no solicitation rule prohibiting solicita-
tion on company premises without authority or during regular
work hours. As discussed above, Respondent rescinded its
overly broad solicitation policy on December 2, 2004 and noti-
fied employees by posting a notice on the company bulletin
board. I recommend that Respondent also disseminate this no-
tice individually to all its employees22 in a separate document
and in the same manner as the dissemination of the unlawful
solicitation policy. Additionally, I recommend that Respondent
post a Board notice to employees at all facilities where the em-
ployee handbook has been or is in effect.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23

22 At all facilities where employees received the handbook contain-
ing the unlawful provision.
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
The Respondent, North American Pipe Company, Van
Buren, Arkansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Maintaining and enforcing an overly broad no-
solicitation rule that prohibits solicitation on company prem-
ises without authority or during regular work hours.
(b) Selectively and disparately enforcing its rules because
employees exercise their Section 7 rights.
(c) Prohibiting employees from distributing union litera-
ture to other employees on Respondent’s parking lot and
exercising their Section 7 rights.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
Van Buren, Arkansas facility, copies of the attached notice
marked “Appendix,”24 and, at each of its other manufactur-
ing facilities where its employee handbook has been, or is in
effect, copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since February 25,
2004.
(b) Within 14 days after service by the Region, distribute
copies of Respondent’s revised solicitation and distribution
rules individually to all employees who have received indi-
vidual copies of Respondent’s employee handbook.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certificate of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

24 If 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 Relations Board.”
NORTH AMERICAN PIPE CORP. 855
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT maintain a provision in our employee handbook
that prohibits you from soliciting on company premises without
authority or during regular work hours.
You have the right to distribute union literature in non-
working areas on company property during nonworking
time. Nonworking areas include the company parking lot.
WE WILL NOT stop you from distributing union literature to
other employees on the company parking lot by evicting you
from our property.
WE WILL NOT selectively or disparately enforce the rules in
our employee handbook because you engage in union or
other concerted activity that is protected by Section 7 of the
National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
NORTH AMERICAN PIPE CORP.