Ostby & Barton Co.

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 199 (N.L.R.B. 1973)

OSTBY & BARTON CO. 199
Ostby & Barton Co. and United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO . Case 1-CA-8130
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
March 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 24, 1972, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Ostby & Barton Co., Warwick,
Rhode Island, its officers, agents, successors, and
assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge and an amended charge filed on February 18 and
March 8, 1972, respectively, the General Counsel of the
National Labor Relations Board, for the Regional Director
for Region 1 (Boston, Massachusetts), issued a complaint
on May 12,- 1972, against Ostby & Barton Co., herein
called the Respondent or the Company, alleging that it
discharged employee Kenneth Maxwell on February 24,
1972, in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, herein called the Act.
The complaint further alleges various independent viola-
tions of Section 8(a)(1). The Respondent filed an answer
denying the allegations of unlawful conduct alleged in the
complaint.
Pursuant to notice, a hearing was held before Adminis-
trative Law Judge John P. von Rohr in Providence, Rhode
Island, on June 22, 1972. Briefs were received from the
General Counsel and the Respondent on July 25, 1972, and
they have been carefully considered.
1. THE BUSINESS OF RESPONDENT
The Respondent is a Rhode Island corporation with its
principal office and place of business located in the city of
Warwick, Rhode Island, where it is engaged in the
manufacture, sale, and distribution of test probes, wire
wrapping bits and sleeves, job shop and test fixtures, and
the like. During the year 1971, Respondent received
materials valued in excess of $50,000 which were shipped
directly to it from points outside the State of Rhode Island
During the same period it shipped products valued in
excess of $50,000 from its Warwick plant to points and
places located outside the State of Rhode Island. Respon-
dent concedes, and I find, that it is engaged in commerce
within the meaning of Section 2(5) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Rubber , Cork, Linoleum and Plastic Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discharge of Kenneth Maxwell
Kenneth Maxwell was hired on December 18, 1971, and
discharged on February 24, 1972. During his tenure of
employment, he worked on the second shift, from 3 p.m. to
midnight, in Respondent's wire trap department as a
milling machine operator.
Maxwell was one of several employees who became
active in an organizational campaign among Respondent's
employees which commenced in latter January or early
February 1972.1 However, except for his involvement in
the hereinafter described incident on the evening of his
termination, there is no evidence whatsoever that Respon-
dent had knowledge of any such activities by Maxwell.
On the evening of February 24, the wire trap department
was engaged in a job which included the production of
3,000 to 4,000 metal sleeves. It is undisputed that the
production of this job had to be completed at the end of
this shift due to the fact that inspection of the completed
parts by the customer was to take place the following
morning. As to his part in the production process, Maxwell
was required to insert a metal piece into a milling machine
which he operated and then wait a period of I to 1-1/2
minutes before inserting the next piece. Approximately 5 or
6 feet away from Maxwell's work station two other
employees, Jeff Dillon and James Armente, were engaged
in cleaning sleeves with rags and an air hose. Although
their work was not directly related to Maxwell's, it also
pertained to the rush job which had to be completed that
evening.
Concerning the events of February 24, Francis Killion, a
group leader in the department, credibly testified that at
I Unless otherwise noted, all dates hereinafter refer to the year 1972
202 NLRB No. 36
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 6 p.m. he observed Maxwell, between his operations,
talking to Dillon and Armente while they were working.
He said that this caused these employees to take their
attention away from their work, causing them to "work
and stop, work and stop." According to Killion, he
thereupon went up to Maxwell and told him that "if he
kept talking to these people, they wouldn't get this job
done and I wouldn't get it out that night." Although
Maxwell testified that he could not recall Killion coming
up and speaking to him in this manner, Killion impressed
me as a believable witness and I credit this testimony as
aforesaid.
A few minutes later Killion again observed Maxwell
talking to the other two employees. This time he went up to
James Grogan, the supervisor of the second shift, and
reported his earlier observations and his conversation with
Maxwell. According to the credited and corroborative
testimony of Grogan and Killion, they both thereupon
stood by for several minutes and watched Maxwell
continue to talk to the two nearby employees. Both
testified that Maxwell's talking interfered with the work of
these employees in the manner related above. It is
undisputed that at this point Grogan went over to Maxwell
and warned him again. Concerning this conversation, the
substance of which was admitted by Maxwell, Grogan
credibly testified as follows:
I walked over to Mr. Maxwell, and I told him that
although he was doing his job, his conversation was
interfering with the production of the other employees,
and I wanted him to stop it.
Mr. Maxwell, he said to me, "What do you want
me, to stop talking now?" I said, "I'm not telling you to
stop talking but at the present time, your conversation
is interfering with production and I can't have it at the
present time .. .
I told Mr. Maxwell that the sleeves had to be out
that night, and it was important that we have them
finished that night, that we had to have them ready for
the first thing in the morning.
Although Respondent maintains a cafeteria for the
employees in its plant, a number of employees customarily
bring their own food and eat at a table which is located in
the center of the work area in the wire trap department.
The dinner period on the second shift is from 7:30 to 8
p.m. At about the beginning of the dinner break on the
evening in question, Maxwell was seated at the table with
employees Henry Cochrane and Julio Madieros. Standing
next to them at the table were two new employees who had
just started that evening, the aforementioned James
Armente and also one Ronald Guertin. It is undisputed
that at this time Cochrane (whom the record discloses to
have been the leading union organizer) and Maxwell were
in the process of soliciting Armente and Guertin to sign a
union card. Cochrane finally handed them cards2 and the
two new employees bent over the table to begin filling
them out. It was at this point that Superintendent Grogan
2 Testimony of Cochrane
3 Maxwell conceded that he was still in the aisle talking to Guertin and
Armente about "a minute" after 8 o'clock
a A copy of the speech, which was read to the employees by Pfeifer, was
introduced in evidence While the contents clearly reveal Respondent's
opposition to the Union, there quite properly is no allegation that any of the
came upon the scene and walked past the table. Although
nothing was said between Grogan and the employees,
Grogan conceded that he saw Armente sign a union card
and hand it to Cochrane. However, while admitting to
seeing Cochrane and the two new employees, Grogan
testified that he did not observe the presence of Maxwell or
Madieros. The testimony of Maxwell and Cochrane
reflects that Grogan approached so close to them that he
could hardly help but observe all of those present. I am
inclined to believe this to be true and shall proceed on the
basis that Grogan did observe the presence of Maxwell at
the table during the incident in question.
A warning buzzer is sounded at 7:55 reminding employ-
ees to be back at work at 8 p.m. Grogan testified that at
about 8:02 p.m. he came out of the cafeteria and saw
Maxwell talking to employees Armente and Guertin.
Although it was after 8, all three of the employees
concededly were standing in the aisle and were away from
their work stations.3 It is undisputed that Grogan there-
upon went up to Maxwell and told him that he was
discharged. Although Maxwell testified that Grogan did
not give him any reason for the termination, Grogan
credibly testified that he told Maxwell that he had been
warned previously that evening about interfering with
production and that therefore he was being fired. Grogan
thereupon explained the meaning of the buzzer system to
Guertin and Armente, both of whom had just been hired
that night, and told them that thereafter they must be at
their work stations by 8 p.m.
B. Additional Facts; Conclusions as to Maxwell's
Termination
The General Counsel points to a combination of several
factors in support of his contention that Maxwell's
discharge was violative of Section 8(a)(3). First, he notes
that Respondent was opposed to the Union and that hence
a motive existed for the alleged discrimination. As
evidenced by an antiunion speech given by Respondent
President Warren Pfeifer to the employees on February 14,
there can be no doubt but the General Counsel' s initial
premise is correct in this regard.4 Secondly, the General
Counsel introduced in evidence Respondent's Employees
Manual which sets forth certain disciplinary steps to be
taken for breaches of Company rules or various other
offenses.5 The sequence of these disciplinary steps, he
correctly points out, were not strictly adhered to in the case
of Maxwell's termination. Finally, as to Maxwell's talking
to employees after the dinner period had expired and
working hours had started, and notwithstanding the fact
that he had been cautioned by the leadman and warned by
the superintendent earlier that evening for having engaged
in the same type of conduct, the General Counsel argues
that Respondent, having observed Maxwell's activities
during the dinner hour, seized upon the last talking
statements contained therein were coercive or exceeded the bounds of free
speech
5 With respect to insubordination or deliberate interference with
production , the rules provide as follows first offense-verbal warning,
second offense-written warning , third offense-3-day layoff, fourth
offense-dismissal
OSTBY & BARTON CO. 201
incident as a pretext for discrimination against him. Upon
the entire record in this case, I cannot agree.
Without question the most important single element in
this case is the fact that on the evening in question
Maxwell was twice warned not to interfere with production
before the dinner penod. Obviously unrelated to Maxwell's
subsequent union activities, it is clear that by these
warnings Respondent demonstrated that it indeed was
concerned that Maxwell's conduct was interfering with the
needed production that evening. Maxwell, however,
disregarded these warnings and instead chose to engage in
the same type of conduct after the end of the dinner hour.
It was at this point, upon being so observed, that he was
spontaneously discharged. Under the circumstances, I
think it quite understandable that the superintendent took
this action without literally following the book. In any
event, insofar as the rules are concerned, the record reflects
that Respondent in the past had not paid strict adherence
to the rules, indeed that it had previously discharged
employees "on the spot" and without written warning .6
I have previously stated that in all probability Grogan
observed Maxwell at the table when he admittedly
observed Cochrane's participation in signing up the two
new employees. In this connection, however, I should point
out that Maxwell and Cochrane gave exaggerated testimo-
ny as to the extent of Maxwell's participation in this
activity. Thus, Maxwell testified, "I helped them fill them
[the cards] out and sign them"; and Cochrane testified,
"Mr. Maxwell was standing behind them and he helped
them fill out the cards." As it developed, however, Maxwell
did not in fact lend assistance to these employees in the
actual filling out the cards. It was Cochrane who handed
the employees the cards and the pen and it was to him that
they were returned. At best, Maxwell at one point orally
told the employees, who were standing, how to spell the
word "Ostby" and there is no indication at all that this was
observed or heard by the foreman.? In any event, and
assuming Grogan to have observed the incident and that
he thereby had reason to believe that Maxwell was a union
supporter, I am not persuaded that the reason given by
Respondent for Maxwell's discharge was, as the General
Counsel contends, a pretext for alleged discrimination. In
short, I find that the General Counsel has not established
by a preponderance of the evidence that Maxwell was
discharged in violation of Section 8(a)(3) and (1) of the
Act. Accordingly, I recommend that this allegation be
dismissed.
C. The 8(a)(1) Violations
It is undisputed that on February 25 President Pfeifer
held separate conversations with employees Henry Co-
6 1 would further point out that even the employee manual reflects that
the rules set forth therein were not intended to be rigidly followed Thus,
with reference to the rules previously referred to in In 5, par C at p 20
states "These rules and recommended disciplinary action are as follows
(Emphasis supplied)
7 At another point Maxwell testified "They were filling out cards and I
was watching them I don't know if he [Grogan I heard anything at all "
8 In somewhat ambiguous testimony, Maxwell asserted that during his
conversation with Pfeifer, Pfeifer stated that he would bring "personal
charges" against him I credit Pfeifer's denial that he did not make any such
statement
chrane and Thomas Riley during which he told them he
had reports from other employees that they had been
soliciting cards during company time and that they should
stop this activity on company time. Pfeifer testified that he
talked to these employees in this manner because this had
been reported to him by one of his supervisors. Cochrane
and Riley denied that they ever solicited on company time;
it was their testimony that they also advised Pfeifer of this
when he spoke to them as aforesaid. In any event, the
record is clear that Pfeifer did not, in speaking to these
employees, interrogate them or threaten them concerning
union activities. I find that Pfeifer did not engage in
conduct violative of Section 8(a)(1) in either of these
conversations.8
Employee Ronald Guertin (no longer employed by
Respondent) testified that on February 25 he and employ-
ee James Armente were called to the office by Foreman
Steve Lynch for the purpose of filling out W-2 forms.
Guertin testified without contradiction that while they
were in the office Lynch spoke to them as follows:
Yes, he [Lynch] told us that-he just asked us if we
signed a union card, so we said yes, and he said he
knew that we signed them, and not much after that. He
dust says he knew that we signed the cards and that the
Union, if they did get a union in there, they didn't want
part-timers, and he said that the union wants steady
hours, and I was working all different hours, so he says,
"If they had a union there" that I wouldn't have my job
anymore, because of the hours that I was working.
From the above undenied testimony it is clear, and I
find, that Respondent coercively interrogated Guertin and
Armente concerning their union activities in violation of
Section 8(a)(1) of the Act.9
Respondent's employees manual, under the heading
"Solicitation," sets forth the following rules:
1. Solicitation for any purpose is not permitted as
protection to employees.
2. Taking of orders or selling of any tickets or
merchandise is not permitted.
3. The only exception is a Community sponsored
project such as the United Fund.
Respondent concedes that as a matter of law the above
no-solicitation rule is overly broad on its face. Unlike the
situation in The Lion Knitting Mills Company 160 NLRB
805, relied upon by Respondent, the record here does not
demonstrate that, notwithstanding the rule, Respondent
permitted widespread solicitation either during working or
nonworking hours. Although it appears that Respondent
has not engaged in recent distribution of the employees
manual, there is no evidence that Respondent has ever
recalled the manuals previously distributed or that it
notified the employees that the rules promulgated in the
9 Although I am persuaded that this incident warrants the remedial relief
provided herein, I do not believe that this single incident warrants the
further finding , as alleged in an amendment to the complaint, that
Respondent "gave to its employees the impression of surveillance of their
union activities" In this connection, the complaint also alleges that
Supervisor Grogan engaged in unlawful surveillance of the employees'
union activities I find the evidence does not support this allegation of the
complaint Surely, absent an intent to violate the Act, an employer has the
right to observe the conduct of employees on its own premises In my view,
the evidence does not reflect that Grogan exceeded this right on the evening
of February 24
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manual were no longer in effect I find that under Walton
Manufacturing Company, 126 NLRB 697, enfd 289 F.2d 117
(C.A.5), the rule is violative of Section 8(a)(1) of the Act.
Whether or not the rule was recently enforced, the Board
in similar cases has deemed it necessary to take appropriate
remedial action See Zenith Radio Corporation of Missouri,
172 NLRB 1724; and Levi Strauss & Co ,172 NLRB 732.
Furthermore, I think that President Pfeifer's discussion
with employees Cochrane and Riley concerning the subject
of Respondent's no-solicitation rule, as previously set
forth, is an additional reason that Respondent be required
to revise its rule to comply with the law and to so notify the
employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
United Rubber, Cork, Linoleum and Plastic Workers of
America, or any other labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, or to refrain from any or all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its plant in Warwick, Rhode Island, copies of
the attached notice marked "Appendix." I' Copies of said
notice, on forms provided by the Regional Director for
Region I of the National Labor Relations Board, after
being duly signed by Respondent's authorized representa-
tive shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found herein.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union
is a labor organization , all within the meaning of the Act
2. By coercively interrogating employees concerning
their union activities and sentiments ; and by publishing
and maintaining in effect the solicitation rule appearing on
page 25 of its Employees Manual , Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent has not violated the Act by its termina-
tion of Kenneth Maxwell.
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case
and pursuant to Section 10(c) of the Act, I hereby make the
following recommended: 10
ORDER
Respondent, Ostby & Barton Co., its officers, agents,
successors, and assigns, shall:
I Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities or sentiments.
(b) Publishing or maintaining in effect any rule or
regulation prohibiting employees during nonworking time
from soliciting their fellow employees to join or support
iU In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and order and all objections thereto shall be
deemed waived for all purposes
ii In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
concerning their union activities or sympathies.
WE WILL NOT publish, maintain in effect, or enforce
any rule or regulation prohibiting employees during
nonworking time from soliciting their fellow employees
to join or support United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or any other
labor organization.
WE WILL forthwith rescind our existing rule against
solicitation as published in our employee handbook to
the extent that it prohibits employees from soliciting
membership in a union organization during nonwork-
ing time on our premises.
OSTBY & BARTON CO 203
WE WILL NOT in any like or related manner restrain This is an official notice and must not be defaced by
or coerce employees in the exercise of their rights under anyone.
the National Labor Relations Act. This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
OSTBY & BARTON Co. or covered by any other material . Any questions concern-
(Employer) ing this notice or compliance with its provisions may be
directed to the Board 's Office, Seventh Floor, Bulfinch
Dated By Building , 15 New Chardon Street , Boston , Massachusetts
(Representative) (Title) 02114, Telephone 617-223-3300.