North American Rockwell Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1972

195 N.L.R.B. 1046 (N.L.R.B. 1972)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whitcraft Houseboat Division , North American Rock-
well Corporation and International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 18-CA-3217
March 28, 1972
DECISION AND ORDER
By, CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 29, 1971, Trial Examiner Bernard J. Seff
issued the attached Decision in this proceeding. There-
after, the General Counsel and the Respondent filed
exceptions and the Respondent filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional. Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings, conclusions, and recommendations to the ex-
tent consistent herewith.
1. The Trial Examiner found that Respondent dis-
criminatorily promulgated and enforced a no-solicita-
tion rule against union organizing in the plant in viola-
tion of Section 8(a)(1) of the Act. We disagree for the
reasons stated below.
In February 1970 Respondent posted a set of general
plant conduct rules on the employee bulletin boards at
the Winona plant, the plant involved herein. It is ad-
mitted that one of these rules was an invalid no-solicita-
tion rule prohibiting the "Soliciting of subscriptions,
memberships, pledges, circulating petitions or conduct-
ing non-company business on Company time or prop-
erty." This rule is not in issue herein.
By registered letter dated April 23, 1971,1 which was
received by the Company on Monday, April 26, the
Union notified the Company that it was seeking to
organize its employees. According to uncontradicted
testimony, on the morning of April 26, Assistant Plant
Manager Leo Carty began his regular morning tour
through the plant at about 7:15 a.m. When Carty
walked into plant no. 2, where assembly work is per-
formed, he found a group of employees conversing with
a fellow employee. This was about 15 minutes after
starting time and Carty observed that none of the peo-
ple had started to work. As Carty approached, some of
the employees dispersed, and he told the others to go
to work. Carty encountered similar situations in two
other areas of the plant. In each instance, it was neces-
sary for him to instruct the employees to go back to
work. When he completed his tour of the plant, he
All dates hereinafter are in 1971.
reported the problem he had encountered to General
Manager Fritz Weiss.
It is undisputed that the employees continued to
congregate in groups during working hours for the re-
mainder of April 26, all day on April 27, and through-
out the morning of April 28. As a result, there was a
substantial adverse effect on production. During these
3 days, production in three departments was down by
almost 50 percent.
After Carty's report on the morning of April 26,
Weiss got in touch with Harry Coll, Respondent's ma-
rine divisions vice president, and advised him that
Carty had reported that employees were congregating
in various areas of the plant and that there was union
solicitation going on during working hours which was
slowing down production drastically. Coll instructed
Weiss to get in touch with James Montgomery, the
industrial relations manager for the marine divisions.
Weiss did so, and Montgomery told him not to do
anything until Montgomery could get to Winona on
April 28.
When Montgomery arrived at the Winona plant on
April 28, Weiss discussed with him in detail the prob-
lem of employees congregating during working hours
and the resulting loss of production. Montgomery
asked to see the plant rules, and after reviewing them,
advised Weiss that the no-solicitation rule was illegal
and unenforceable because it prohibited employees
from soliciting during break or lunchtime and other
nonworking hours. Montgomery suggested that the ex-
isting rule be revised to permit solicitation during non-
working hours. Based on Montgomery's advise, Weiss
issued a "Statement of Unionism" which, inter alia,
contained the following revision of the plant no-solici-
tation rule and was posted on the bulletin boards by
Carty at about 11 a.m. on April 28:
As you well know working time is for work. No
one will be allowed to solicit or distribute litera-
ture during our working time, that is, when he or
she should be working. Anyone doing so and ne-
glecting his work or interfering (sic) with the work
of another employee will be subject to discharge.
Any other rule concerning solicitation is no longer
effective.
At the same time Carty removed the general plant
conduct rules which contained the unlawfully broad
no-solicitation rule. The Company also mailed to each
of its employees a "Dear Whitcraft Employee" letter
which contained the revised no-solicitation rule.
The April 28 announcement of the no-solicitation
rule was removed from the bulletin boards at about the
time of the Board election, and, contrary to the Trial
Examiner, at the same time, modified general plant
conduct rules containing the revised no-solicitation
rule were reposted on the bulletin boards.
195 NLRB No. 189
WHITCRAFT HOUSEBOAT DIVISION 1047
The Trial Examiner found that Respondent's an-
nouncement and enforcement of its no-solicitation rule
violated Section 8(a)(1) because of the timing of the
rule's promulgation, and the fact that the "record is
studded with evidence of many other solicitations being
conducted in the plant before, during and after the
union's organizational campaign" without any discipli-
nary action being taken.
Contrary to the Trial Examiner, the rule was not
adopted on the same day that the Company was
notified that the Union was going to conduct an organi-
zational campaign. The record shows that the Com-
pany received notification of the organizing drive on
April 26 and that the revised rule was not posted until
shortly before noon on April 28. More importantly, the
Trial Examiner ignored the uncontradicted aforemen-
tioned testimony that during this 2-day period there
had been a marked decline in production due to union
solicitation on company time and that this was the
reason for adopting the revised rule. These circum-
stances adequately explain on a nondiscriminatory ba-
sis the timing of the rule's promulgation.
Further, there is no evidence that any solicitations
were knowingly permitted by Respondent after the re-
vised no-solicitation rule was posted on April 28. Thus,
while one employee testified that punch cards had cir-
culated in the plant the week before the hearing, he did
not specifically say that this was done during working
time, nor could he say that Carty was aware of it.
Another employee testified that a weekly check pool
was in operation during working time the week before
the hearing. However, he could not say whether Carty
was aware that it was solicited during working time.
Carty testified that the check pool is supposed to be
handled after working hours and that he had never seen
it done during working hours.
The Trial Examiner also relied on Respondent's fail-
ure to discharge Tom Clinger as showing disparate
treatment. The record shows that Carty saw Clinger
engage in solicitation during working time on April 26.
At that time the original rule was in effect. When Carty
posted the revised rule on April 28 he called Clinger
and John Grable, another employee he had previously
observed soliciting during working time, to the bulletin
board and showed them the revised rule which he had
just posted. Carty warned Grable and Clinger not to
pass out union cards on company time as he would
dislike losing two good men and told them that if there
was any further solicitation he would have to discharge
the person involved. He requested Clinger and Grable
to spread the word among the other employees. Thus,
it is clear that the Trial Examiner erred in finding that
this incident represented disparate enforcement of the
revised no-solicitation rule; for, at the time that Clinger
and Grable engaged in the solicitation to which Carty
was referring, the then operative no-solicitation rule
was the pre-April 28 one which was illegal and unen-
forceable.
Finally, the Trial Examiner found that Respondent's
failure to discharge employee Kuntz for circulating an
antiunion petition established further disparate treat-
ment in the application of the revised no-solicitation
rule.' The facts show that Kuntz circulated an antiun-
ion petition in the course of which he spoke to every
employee in the plant. Kuntz testified that the petition
was circulated on nonworking time and that manage-
ment was unaware of such activity. Although uncon-
tradicted, the Trial Examiner discredited Kuntz' state-
ment that he circulated the petition without the
knowledge of the Company. In addition, the Trial Ex-
aminer inferred Respondent's knowledge of the antiun-
ion petition upon finding that in general the employees'
activities were apparently well known to management;
Carty made at least 15 tours of inspection each day; the
antiunion solicitation involved every employee in the
plant; and Respondent did not affirmatively disclaim
knowledge of the circulation of the antiunion petition.
However, contrary to the Trial Examiner, the bur-
den is on the General Counsel to show that Kuntz
solicited on company time. Since Kuntz testified as a
witness for the General Counsel that he circulated the
petition on nonworking time and since no other witness
contradicted his testimony in any respect, Respondent
had no duty to disclaim knowledge of the circulation
of the petition. There is no evidence whatever in the
record indicating that Kuntz did solicit on company
time.
In these circumstances, we find that the facts do not
establish that Respondent's announcement and en-
forcement of the revised no-solicitation rule was in-
tended as retaliation for the employees' union activity,
or that it violated Section 8(a)(1).
2. The Trial Examiner further found that Respond-
ent violated Section 8(a)(3) by discharging employees
Erwin Wolfram and Jerome Daniel. We find merit in
Respondent's exception to this finding.
Although Daniel and Wolfram engaged in oral union
solicitation during working time with two other em-
ployees for a period of about 20 minutes on April 30,
the Trial Examiner nevertheless found that the men
were in fact discharged because of their union activities
and not for violating the revised no-solicitation rule,
because he reasoned in this connection that the conver-
sation was a single isolated instance and was "intermit-
tent" and "rather brief"; Respondent's firing of the
men was precipitate; the discharge was contemporane-
ous with the beginning of the union campaign; and
Respondent engaged in disparate treatment with re-
gard to Kuntz and Clinger.
' The Trial Examiner erred in stating that Kuntz testified as a 43(b)
witness.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have found that the revised rule was not
adopted for an illegal purpose and was not enforced in
a disparate manner with regard to Kuntz, Clinger, and
other employee solicitations, the Company had the
right to enforce the rule against Daniel and Wolfram
according to its terms. The conduct of these two men
plainly violated the rule, which specified that anyone
engaged in such prohibited activity "will be subject to
discharge."
Finally, the timing of the discharge must be viewed
realistically. True, it occurred shortly after the Re-
spondent became aware of the union campaign. But
any discipline for violating a valid no-solicitation rule
which is caused by an employee's prohibited solicita-
tion of union support or membership is bound to occur
during' a union campaign. In this context, therefore,
our usual presumptions about timing have little appli-
cability.
Upon review of the record as a whole, we are per-
suaded that Daniel and Wolfram were discharged for
their misconduct in violating a valid rule.
Accordingly, we shall dismiss this allegation of the
complaint.
3. We disagree with the Trial Examiner that Re-
spondent violated Section 8(a)(1) by requesting in its
"Statement of Unionism" and its "Dear Whitcraft Em-
ployee" letter that "if anyone is causing you trouble on
your job or trying to pressure you to sign a card or join
a union, you should let the company know about it
immediately and we will take steps to see that it is
stopped."3 In our view requesting the reporting of in-
stances of "pressure" or "trouble on your job" was not
intended to nor did have the effect of inviting reports
of any and all organizing efforts, and therefore we
would not find this violative of Section 8(a)(1) of the
Act.4
THE REMEDY
We have found, contrary to the Trial Examiner, that
Respondent did not engage in conduct violative of Sec-
tion 8(a)(1) by its promulgation and implementation of
a revised no-solicitation rule and the statements con-
tained in its "Statement of Unionism" and "Dear Whit-
craft Employee" letter. In addition we have found that
Respondent did not engage in conduct violative of Sec-
tion 8(a)(3) by its discharges of employees Wolfram
and Daniel pursuant to the aforementioned rule. Ac-
cordingly, we shall order that the complaint be dis-
missed in its entirety.
' We reject Respondent's contention that this conduct was not litigated
fully at the hearing as there is no question that the two documents contained
the statement upon which this violation was based.
` Member Fanning would find this conduct to be violative of Section
8(a)(1) for the reasons set forth in the Trial Examiner's Decision
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be; and
it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: This case was heard at
Winona, Minnesota, on August 31, 1971,' based on a charge
filed on May 6, 1971. The complaint alleges that Whitcraft
Houseboat Division, North American Rockwell Corporation
(hereinafter referred to as the Company or Respondent), in-
terfered with, restrained, and coerced its employees in the
exercise of rights guaranteed them by Section 7 of the Act.
The unfair labor practices involve alleged violation of Section
8(a)(1) because the Company posted a plant rule forbidding
solicitation initially on company property. Subsequently this
notice was changed to limit the ban on solicitation during
working hours. Previously there was no such limitation in the
notice. Respondent also allegedly discharged two employees
whom the General Counsel claims were discharged because
of activities on behalf of the labor union. Respondent, by its
answer, admitted certain allegations of the complaint but
denied the commission of any unfair labor practices.
At the hearing all parties were afforded an opportunity to
adduce relevant testimony, to examine and cross-examine
witnesses, and to argue orally on the record. Oral argument
was waived. Briefs submitted by the' General Counsel and
Respondent, respectively, have been received and duly con-
sidered.
Upon the entire record in the case, including my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, under the name
Whitcraft Houseboat Division of North American Rockwell
Corporation, is engaged in the manufacture, distribution, and
sale of houseboats.
During the past calendar year, Respondent purchased
goods and services valued in excess of $50,000 from points
directly outside the State of Minnesota for use in Winona and
its Winona, Minnesota, operations.,During the same period
of time Respondent, in the course and conduct of its opera-
tions at Winona, Minnesota, sold and distributed goods and
services valued in excess of $50,000 to points directly outside
the State of Minnesota. Based on the facts of record and the
admissions of Respondent I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within the mean-
ing of Section 5 of the Act.
All dates in this case refer to 1971 unless otherwise indicated.
WHITCRAFT HOUSEBOAT DIVISION 1049
III. THE UNFAIR LABOR PRACTICES
A. The No-solicitation Rule
It is undisputed that prior to the Union' s organization
campaign Respondent had posted and maintained a set of
plant rules which included a no-solicitation rule which pro-
vided , inter alia, that employees were prohibited from solicit-
ing during break or lunch time and other nonworking hours.
The Union notified the Company by registered mail that an
organizational campaign had begun on April 26. Upon re-
ceipt of this letter the Company 's general manager, Fritz
Weiss, communicated with his home office and was advised
by the Respondent 's director of labor relations that a new
notice should be put up in place of the one which previously
was in effect . This notice states "soliciting of subscriptions,
memberships , pledges , circulating petitions for conducting
non-company business on Company time or property" was an
offense for which the penalty could result in immediate dis-
charge . The Company also mailed to each of its employees a
document entitled "Statement of Unionism" and such infor-
mation was sent to each of its employees by mail.
The General Counsel contends that the new rules estab-
lished by the Respondent were clearly aimed at the union
campaign . In support of his contention he points out that one
of the sentences in the document mailed to each employee
states "the company does not want or intend to have a
union ." There is further information in the document sent by
the Respondent to its employees encouraging any of them to
report to the Company any pressure brought to bear on them
to sign a card or to join the Union . Thus, the General Counsel
contends the employees were in fact solicited to inform on
their fellow employees if they engaged in any of the activities
referred to above.
The General Counsel 's brief recites the fact that the Board
has recently held that soliciting employees to inform on one
another constitutes a violation of Section 8(a)(1) of the Act,
Bank of St. Louis, 191 NLRB 119. General Counsel further
argues that even if a no-solicitation or no-distribution rule is
presumptively valid on its face such a presumption is rebutta-
ble. Thus, if the rule is aimed at a union 's organizational
campaign in an effort to discourage the employees ' concerted
activities , the rule constitutes a violation of the Act and can-
not be enforced . Pepsi-Cola Bottlers of Miami, Inc., 155
NLRB 527; Wm. H. Block Co., 150 NLRB 341; Walton
Manufacturing Co., 126 NLRB 697, enfd. 289 F. 2d 177 (C.A.
5). As a further indication of the Respondent 's purpose in
changing its no-solicitation rule and sending copies of it to
each of its employees the General Counsel points out that
Assistant Plant Manager Leo Carty "admitted on cross ex-
amination that the rules which Respondent posted on April
28 had been removed from the bulletin board shortly before
or shortly after the NLRB election which had been con-
ducted in the plant ." Thus, it would appear that the Respond-
ent itself regarded these rules as being aimed directly at the
organizational campaign.
Furthermore, although the rules seemed designed to limit
all forms of solicitation within the plant , the record is studded
with evidence of many other solicitations being conducted in
the plant both before, during , and after the Union's organiza-
tional campaign. In this connection employee Ray Sultze, an
employee of 9 years standing , testified that there had taken
place continued solicitations for flower funds , Christmas gifts
for supervisors , gifts for hospitalized supervisory personnel,
baseball and football jackpots , the community chest , punch-
cards for prizes , and other similar solicitations . There is also
a check fund which it was not denied was in operation up to
and including the period just prior to the hearing . This check
fund involves the deposit of 50 cents by each employee who
wants to participate in a cardboard box and if the number on
the check corresponds to the one indicated by the player of
the game he wins a certain prize in cash.
Carty responded to these accusations by stating that so far
as Respondent knew there had been no solicitations after the
posting of the new nonsolicitation rule and that while the
Company knew about the check fund collection no such ac-
tivity took place during working hours.
The record contains evidence that for the past approxi-
mately 10 years no employee had ever been punished or
discharged for distributing punchcards or engaging in solici-
tation for community chest or any other solicitations that
took place in the plant.
B. The Alleged Discriminatory Discharges
Ervin Wolfram began to work for the Company March 8
and was discharged on April 30. He testified that employee
Donna Baker said in a teasing manner , "Jerry is mad and I'm
glad and I don 't know how to please him ." She said it a
number of times before the lunchbreak and continued after
the lunchbreak . Wolfram said the remark was made at least
approximately 5 times.
Daniel did not respond at first and then he said "sign a
card." She asked where she could get a card and she also
asked who was handing them out in the fiberglass area. Wol-
fram said he was operating a vibrator which made a lot of
noise. Each time he stopped his sander to check the work he
was doing the conversation started up again . The verbal ex-
changes that took place between Daniel and Baker spanned
a period of approximately 20 minutes . Employee Horman
said that she could not afford whatever the union dues would
be.
Jerome Daniel began to work for the Company approxi-
mately 10 years ago and discharged on April 30. He said he
was a leadman who spent 95 percent of his time doing physi-
cal work . Daniel admitted he called Baker a "liar" but did not
say "god damn liar." At intervals Daniel discussed the fact
that the vacation of the employees would be improved, that
they would get additional holidays off and that they could
bargain with their employer through the union for increases
in wages at stated times and that the employees in his opinion
would be better off if they were represented by a union. In the
course of his remarks he also asked one of the two girls
whether her husband was a member of a union . She said he
was and Daniel then remarked that he probably got increases
at certain intervals when the union was able to negotiate these
improvements . It seems clear from the testimony of the two
girls, Daniel , and Wolfram that the talk that took place
among these four employees was intermittent and even
though the machines they were working on were turned off
briefly at various times the conversations were rather brief. At
approximately 2:35 p.m. Supervisor Carty called both Wol-
fram and Daniel into his office . Carty opened the conversa-
tion and said to Daniel "Jerry , I'm surprised at you, I'm
going to have to fire you two boys, the two girls come in here
complaining that you were swearing at them and harassing
them about the union."
Daniel was asked whether he said anything in response to
this accusation and the only word he uttered was "What?"
Daniel also testified that Carty did not ask either Wolfram or
him to give their side of the story. Carty told the two men to
go out in the shop, pick up their tools, and go to the office
and get their checks. After they had complied with this order
and turned in their tools they were instructed to go to the
office of one of the office girls where they found Leo Carty.
Carty read the statement employee Baker had signed. After
Carty started reading the two men asked him to read one
sentence at a time and the men told him whether it was true
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or not and then he would go on to the next one . Both Daniel
and Wolfram stated that most of the statements that were
read to them were not completely accurate and they did not
contain the actual words that were used by Daniel . There was
agreement that Baker stated in her written complaint that
Daniel asked her if her husband was a union member and she
said yes . Both men denied the other contents of this state-
ment.
Both of the discharged employees stated that their checks
were ready for them when they got to the office girl 's office.
Wolfram testified that Carty said Jerry (Daniel) had been his
best employee for the last year and a half and he hated to let
him go . He turned to me and said , "I had only been there a
short time but I was doing very good work and he didn't
exactly like to let me go either."
Wolfram said he never saw Daniel solicit any employee to
sign an authorization card during working hours . He also
stated that during the talk with Baker and Horman , Daniel
did not stop working but kept right on with his job while he
was having his conversation . Wolfram testified that among
other comments made by Daniel he had stated to the two girls
that "If we had a union contract here the jobs would be
posted and the oldest person signing up would get the job. His
purpose in making the remark was to indicate to the em-
ployees that if they had a contract they might be able to better
themselves.
In large part the testimony of Wolfram was corroborated
by Daniel . Daniel denied that he had called Baker a "god
damn liar" but did admit that he called her a "liar." He also
reiterated the fact that the conversation among the four em-
ployees was begun by Baker 's taunting remarks which he
took to be a form of teasing . He said he was not mad at her
but he did ask her if she had signed a card.
General Manager Weiss stated on the record that he was
reluctant to discharge Daniel because he was a very good
worker but that it would have been unfair to discharge one
without the other . Furthermore, it was essential that both
men be discharged because in order to maintain discipline in
the plant it was necessary to mete out similar punishment for
the same offense.
General Manager Weiss was asked if he knew that fre-
quently conversations took place among the employees dur-
ing the workday . Weiss replied "there's always conversation,
I would say ." He also conceded that the Company had never
discharged any employee for talking on the job before the two
men who are the subject of the case at bar . He further stated
that he did not think talking as such is objectionable but that
it is "the emotional element that was in here." Weiss said the
men were discharged for violating a stated company rule and,
"if you want to run a company , you have to enforce authority,
and keep the whole place in order ." Carty for his part stated
that the reason for the discharge was not the actual cursing
but was due to the "fact of harassing the employees, to the
fact that they came to me and complained they couldn't work
under the conditions."
There is direct unrefuted testimony from employee
Thomas Clinger that on the day the revised no-solicitation
notice was posted , April 28, he was asked by Assistant
Manager Leo Carty if he had seen the notice.
Clinger said that Carty admonished him by stating:
John , I seen you talking about it yesterday when you
were working on a boat , and I heard you telling about
it then.
Carty warned Clinger that if it was done any more he would
have to discharge anybody found soliciting.
Employee Frank Kuntz , who testified as a 43 (b) witness,
stated that he was a leadman in the joining department. In
this capacity he had authority over approximately 10 em-
ployees. He said he did very little production work and he
was promoted to the position of supervisor a short time ago.
During the time that he still carried the title of leadman he
made recommendations for employees to receive more than
scheduled increases . These recommendations were granted.
He further said that if a man wanted a day off he would come
to Kuntz who had authority to grant the employees ' requests.
Kuntz stated that he was aware of the Union 's campaign
in April , May, and June . Kuntz circulated a petition in oppo-
sition to the union campaign . He talked to every employee in
the plant . The petition which he circulated stated something
to the effect that the undersigned employees did not believe
they needed to be represented by the Machinists ' Union.
Kuntz said that no company representative asked him to
discontinue his activities with respect to circulating the peti-
tion . He claimed that it was circulated on nonworking time
and that management was not aware that he was engaged in
this activity.
Nowhere in the record is there any evidence that the Re-
spondent affirmatively disclaimed knowledge of the circula-
tion of the antiunion petition . It is difficult to believe that in
a plant where the activities of the employees were apparently
well known to management and where Carty stated that he
made at least 15 tours of inspection each day that such ac-
tivity , which involved the signing or the attempted solicita-
tion of signatures of every single employee in the plant, could
have gone on without the Company knowing what was in
progress.
In evaluating the testimony of Kuntz I was impressed more
with his obvious attempt to curry favor with his boss than
with his veracity.
It should be noted that in the notice posted in February
1970 rule 3 explicitly states that the circulation of petitions
on company time or property is an offense punishable by
immediate discharge. After the rule was changed the prohibi-
tion that circulating a petition on company time was con-
tinued with the limitation that the reach of the rule was
limited to the extent that there was no prohibition on em-
ployees engaging in this activity on their own time.
Concluding Findings and Analysis
The Union held its first meeting on April 22 . A letter was
sent to the Respondent by the Union notifying the Company
that the Union was engaging in an organizing campaign
among its employees . On February 1970 to August 28, 1971,
Respondent had posted an invalid no-solicitation rule prohib-
iting any solicitations at any time on company property. On
the same day that the notice was received by the Respondent
that the Union was attempting to organize its employees the
Respondent posted a revised no-solicitation rule limiting its
application to solicitation on company time.
It was well known in the plant and Respondent did not
deny that it knew Daniel was the sparkplug of the union
campaign.
Despite the long continued existence of the invalid no-
solicitation rule, soliciting in the plant was rife covering a
wide spectrum of activities : Christmas fund, gifts to company
supervisors ; flower fund; community chest ; check pool; and
baseball and football pools. In fact , it is undisputed that the
check pool has flourished up to the time of the hearing. More
to the point , it was not denied that Assistant Manager Carty
admonished employee Clinger that he had seen him talking
about it yesterday and warned Clinger that he would be
discharged if found soliciting again.
It is important to note at this juncture that Clinger was not
discharged out of hand for engaging in similar soliciting
which caused the immediate discharge of Daniel and Wol-
fram . Note also that leadman Kuntz testified , without refuta-
WHITCRAFT HOUSEBOAT DIVISION 1051
tion, that he circulated an antiunion petition in the course of
which he spoke to everyone of Respondent's employees.
Carty had stated that it was his practice to make 15 rounds
of the plant on a daily basis. Under these circumstances and
in view of the substantial information which Respondent
seemed to have in its possession concerning the activities of
its employees it is highly unlikely that Carty knew nothing
about the thorough canvassing in the plant of each and every
one of its employees. The only reasonable explanation of
Respondent's lack of action against Kuntz can be found in
the fact that Kuntz was actively campaigning against the
Union and this suited the Respondent's purpose.
It is established law that the promulgation and enforce-
ment of a rule prohibiting union solicitation during working
hours is presumptively valid in the absence of evidence that
it was adopted for a discriminatory purpose.'
The fact that Respondent requested the cooperation of its
employees, in reporting to it immediately if there was any
solicitation on company time is commented about in Bank of
St. Louis, 191 NLRB 119.
Respondent's request that employees report immedi-
ately if they were subjected to constant badgering by
union proponent was therefore tantamount to a request
that they report persistent attempts to persuade. Ac-
cordingly, the Respondent's letter would tend to restrain
the union's proponent from attempting to persuade any
employee through fear that his conduct would be re-
ported to management.
It is significant to note that the reason for the discharge of
Daniel and Wolfram did not come about as a result of "con-
stant badgering by the union proponent-persistent attempts
to persuade-but in the instant case there was one single
isolated instance of an attempt to solicit during working
hours and this resulted in the immediate discharge of the
alleged discriminatees.
It is well settled that a no-solicitation rule which forbids
union organizing activity on the job in such a way as to cause
the union proponent to neglect his own work or interfere with
the work of others is not an unreasonable limitation on the
work of the others.' However, it is equally well settled that:
. management can prevent employees from soliciting
for a union during working hours, provided the ban is
imposed on a nondiscriminatory basis. Further such a
ban, otherwise reasonable, can become violative of the
Act if the times at which the ban was promulgated were
restricted to times of union activity and no other times
and other types of solicitation were and had been al-
lowed.
In the instant case the revised ban on union solicitation was
promulgated a day or two after the commencement of union
activities. Note also that a copy of this newly revised rule was
mailed to every one of the Respondent's employees at a time
when organizational activities were intense. This had never
been done before. Thus the Respondent by discriminatorily
promulgating and enforcing its no-solicitation rule violated
Section 8(a)(1) of the Act and I so find.
In the case of William H. Block Company, 150 NLRB 341;
Walton Manufacturing Company, 126 NLRB 694, enfd. 289
F.2d 177 (C.A. 5) the Board concluded that:
1. Even if the employer's rule against union solicitation
by employees during working time was presumptively
valid, this presumption is rebuttable;
2. The elements present, including the fact that the Re-
spondent took no action to prohibit other types of solici-
tation ... showed that the rule was directed against
Kerns Bakery, Inc., 154 NLRB 1582, 1986
Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527, 528, 529.
union organization and not to the protection of the
proper use of working time;
3. Because its adoption was motivated by antiunion con-
siderations that presumption was rebutted and the rule
was invalid.
Using the yardstick set forth in the quotation supra it is
apparent that however fair on its face the revised no-solicita-
tion rule may appear, it was implemented in a way to discour-
age union activities and therefore the presumption was rebut-
ted and it became invalid.
In any case the activities of Daniel and Wolfram were not
part of a persistent campaign of badgering fellow employees.
Their talk with Horman and Baker constituted a single iso-
lated instance.
In defense of its discharge of Wolfram and Daniel the
Respondent in its brief states inter alia (a) the rules specify
that the penalty for violation was discharge and not some
lesser penalty."
If Respondent's position of enforcing the rule with rigidity
is to be believed how can it be explained that Carty, coming
upon employee Clinger asked if he had seen the revised no-
solicitation notice and then said, "John, I seen you talking
about it yesterday when you was working on a boat and I
heard you talking about it then." Carty warned Clinger that
if it was done anymore he had to discharge anybody found
soliciting. In this case Respondent sounded a clear warning
but did not discharge Clinger on the spot. Such disparity of
treatment perforates the Respondent's contention that the
rule was mechanistically enforced and that it had no choice
but to discharge both of the alleged 8(a)(3)'s.
It is also significant that the timing of the discharge took
place within a day or two after the Respondent learned of the
union organizational campaign.
In explaining that Daniel, when told he was discharged,
did not ask permission to explain his side of the case, Daniel
said that it was apparent when he arrived at Carty's office that
he had already been discharged and was told together with
Wolfram to go to the office and collect the final checks which
had been prepared and were waiting to be picked up. Such
precipitate action, occurring as it did within a day or two of
the beginning of the union campaign and the posting of the
revised antisolicitation rule, creates the strong inference that
these two employees were discharged for their union activi-
ties and not for violating the posted rule. In this connection
it should also be recalled that employe Kuntz seemed to be
allowed the run of the plant. He explained that he circulated
an antiunion petition after working hours without the knowl-
edge of the Company. I do not credit this statement.
Under all of these circumstances, I find that the reason for
the discharge was^a mere pretext but that the men were in fact
discharged because of their activities on behalf of the labor
union and thus Respondent violated Section 8(a)(3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the operations of the Company
set forth in section I, above, have a close, intimate, and sub-
stantial relation on trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing such commerce and the free flow thereof.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
In view of the findings above set forth to the effect that the
Company has engaged in unfair labor practices affecting com-
merce, it will be recommended that it be required to cease and
desist therefrom and take such affirmative action as appears
necessary and appropriate to effectuate the policies of the
Act.
On the basis of the foregoing findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the purview of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview of
Section 2(5) of the Act.
3. By discriminatorily discharging Jerry Daniel and Ervin
Wolfram Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By requiring that employees report to management any
efforts at union organization, such requirement tends to re-
strain the employees through fear that their conduct would
be reported to management. By such conduct the Company
violated Section 8(a)(1) of the Act.
5. By promulgating and implementing a rule prohibiting or
tending to inhibit employees from soliciting union member-
ship on company property, during nonworking hours, the
Company has violated Section 8(a)(1) of the Act.
6. By interfering with, restraining, or coercing employees
in the exercise of their rights guaranteed by Section 7 of the
Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]