Our Way, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1983

268 N.L.R.B. 394 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our Way, Inc. and International Brotherhood of
Firemen and Oilers, AFL-CIO and Alex Smith.
Cases 10-CA-16207, 10-CA-16742, 10-CA-
16809, 10-CA-17089, and 10-CA-16288
20 December 1983
DECISION AND ORDER
On 14 April 1982 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief in oppo-
sition to exceptions.
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 as modified, and to adopt the recom-
mended Order.
The judge, relying on T.R. W. Bearings, 257
NLRB 442 (1981), found that the Respondent's
rules prohibiting employees from distributing litera-
ture and soliciting during "working time" are pre-
sumptively invalid. We do not agree. Although
T.R. W. Bearings held that rules prohibiting employ-
ees from soliciting during "working time" are, to-
gether with rules prohibiting soliciting during
"working hours," presumptively invalid, we no
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 As the evidence of the Respondent's union animus is otherwise con-
vincing, we find it unnecessary to rely on the findings in the section of
the judge's decision entitled "Other Evidence of Animus," particularly
those incidents involving a supervisor's obtaining lunch for nonstriking
employees.
We also find unnecessary, and do not rely on, the judge's alternative
finding that, even in the absence of majority status. a bargaining order is
warranted under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Member Dennis agrees that the Respondent violated Sec. 8(a)(5) and
(1) of the Act by granting wage and benefit increases on 14 November
1980 to the employees at its Tucker plant and by refusing the Union's
request on 4 December 1980 to negotiate about the increases. In rejecting
the Respondent's 10(b) defense to these allegations, Member Dennis relies
solely on the judge's finding that the Respondent's bargaining obligation
at Tucker arose on 25 September 1980 and the limitation period com-
menced on that date at the earliest.
Member Dennis does not agree with the judge's conclusion that the
Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to grant
an increase in wages and benefits to its Elizabeth Street employees. The
judge relied on Clearwater Finishing Co., 254 NLRB 1168 (1981), enf
denied in part 670 F.2d 464 (4th Cir. 1982), and Eastern Maine Medical
Center, 253 NLRB 224 (1980), enfd. 658 F.2d I (Ist Cir. 1981), which
cases Member Dennis believes are inapposite. Those cases found viola-
tions of Sec. 8(a)(1) and Sec. 8(a)(3) and (I), respectively, because the
employers granted wage increases to employees outside the unit, but not
to those within it. In this case, the Respondent granted increases to part
of the unit at Tucker, which the complaint alleged and the judge found
violated Sec. 8(a)(5) and (1). The complaint contains no specific allega-
tions that the Respondent violated any section of the Act in failing to
give increases to the Elizabeth Street employees, nor is Member Dennis
able to conclude that any theory supporting the finding of a violation
was fully litigated. Accordingly, she would reverse the judge's finding of
a violation.
longer adhere to that decision and shall overrule it.
The judge also found that the Respondent unlaw-
fully modified and enforced its no-solicitation and
no-distribution rules. We agree.
The Respondent's work rules state:
In order to make our company a better place
to work, the following are Prohibited: . . . 7.
Soliciting, collecting or selling for any purpose
during the working time of the soliciting em-
ployee or the working time of the employee
being solicited.
The Respondent also distributed an employee
handbook stating:
SOLICITATION/DISTRIBUTION-In
order to prevent disruption in the operation of
the plant, interference with work and incon-
venience to other employees, solicitation for
any cause, or distribution of literature of any
kind, during working time, is not permitted.
Neither may an employee who is not on work-
ing time, such as an employee who is on lunch
or on break, solicit an employee who is on
working time for any cause or distribute litera-
ture of any kind to that person. Whether on
working time or not, no employee may distrib-
ute literature of any kind in any working areas
of the plant.
The governing principle is that a rule is pre-
sumptively invalid if it prohibits solicitation on the
employees' own time. Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). "Working time is for
work" is a long-accepted maxim of labor relations.
Peyton Packing Co., 49 NLRB 828, 843 (1943).
From that case until T.R. W. Bearings, above, the
Board has held that rules prohibiting solicitation
during working time are presumptively lawful be-
cause such rules imply that solicitation is permitted
during nonworking time, a term that refers to the
employees' own time.3 Although the Board did not
initially distinguish between rules using "working
time" and rules using "working hours," in Essex
International, 211 NLRB 749 (1974), the Board
made clear that rules using "working hours" are
I Prior to T.R. W the Board, although it may have waivered, did not
definitively rule otherwise. In Campbell Soup Co., 159 NLRB 74 (1966),
the Board found that a rule prohibiting distribution during "working
time" and prohibiting solicitation during "Company working hours" was
invalid. In Avon Convalescent Center, 200 NLRB 702 (1972), the Board
did find that a no-solicitation rule using "working time" was invalid but
ordered the company to cease from "Im]aintaining a rule forbidding em-
ployees from engaging in union solicitation during their nonwork time in
any area of its premises." Contrary to our dissenting colleague, we be-
lieve that our decision here is compatible with Campbell because the rule
there used the term "working hours" and with Avon because a rule, like
the one in this case, prohibiting solicitation during worktime creates a
clear implication permitting solicitation during nonworktime, which
meets the terms of the order in Avon.
268 NLRB No. 61
394
OUR WAY, INC.
presumptively invalid because that term connotes
periods from the beginning to the end of work-
shifts, periods that include the employees' own
time. The Board also held, in contrast, that rules
using "working time" are presumptively valid be-
cause that term connotes periods when employees
are performing actual job duties, periods which do
not include the employees' own time such as lunch
and break periods.
The Respondent's no-solicitation and no-distribu-
tion rules conform not only with the standards set
by Peyton Packing, above, but also with the stand-
ards of Stoddard-Quirk Mfg., 138 NLRB 615
(1962), a leading case widely cited for years as de-
fining the balance among the rights of employees,
employers, and unions with respect to the legal and
practical problems presented by solicitation. See
Morris, The Developing Labor Law, "Restrictions on
Union Activity on Employer Property," pp. 82-90,
BNA (1971), and "Employer's Restrictions on
Union and Employee Activity on Employer's
Property," pp. 88-107, BNA (1983); Schlossberg,
Organizing and the Law, "The General Rules Gov-
erning Employee Distribution and Solicitation," p.
41 et seq., BNA (1967); and Bartosic & Hartley,
Labor Relations Law in the Private Sector, pp. 35-36,
ALI-ABA (1977). By the time of the Board's deci-
sion in T.R. W. Bearings, above, the Board's distinc-
tion between "working time" and "working hours"
had attained substantial understanding, and many
unions and employers had fashioned their instruc-
tions, policies, and rules in reliance on the princi-
ples and standards set forth in Peyton Packing, Stod-
dard-Quirk, and Essex International. We find no
compelling reason to abandon those standards. The
Board's decision in T.R. W. Bearings was an unnec-
essary departure from longstanding precedent and
has served primarily to cause unjustified confusion
and a string of nonproductive litigation. TR. W.
Bearings is therefore overruled 4 to the extent that it
conflicts with the standards set forth in Essex Inter-
national.
We are aware that the Board has been criticized
by both management and union representatives for
the instability of its rulings.5 Unlike the unneces-
sary and unsettling change in policy made by
TR. W. Bearings, the return to Essex International
will not require unions and employers to rewrite
any existing instructions, policies, or rules and will
not make any valid rule suddenly invalid. A rule
4 Our decision here reflects the views expressed by Member Hunter in
Intermedics. Incc, 262 NLRB 1407 (1982) (Chairman Van de Water and
Member Hunter concurring and dissenting)
I See, e.g.. various comments made at the meeting of the American
Bar Association's Section on Labor Law and the annual meeting of the
Federal Bar Association as reported in Labor Relations Yearbook - 1982,
BNA (1983).
made in reliance on T.R. W. Bearings and stating
that solicitation is not prohibited on the employees'
own time such as lunch and break periods will per-
force be valid under Essex International. In overrul-
ing T.R. W. Bearings we are merely returning to the
long-held standard that rules banning solicitation
during working time state with sufficient clarity
that employees may solicit on their own time. 6
Although we do not agree with the judge's ap-
plication of T.R. W. Bearings, we do agree with the
judge's finding that the Respondent enforced un-
lawful rules prohibiting union solicitation by its
employees. As fully set out in the judge's decision,
the Respondent's rules as orally modified, as discri-
minatorily applied only to union solicitation, and as
enforced against Betty J. Skidmore violate the Act.
For these reasons, we find that the recommended
Order is necessary to remedy the Respondent's vio-
lations of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Our Way,
Inc., Atlanta, Georgia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order.
MEMBER ZIMMERMAN, dissenting in part.
I join in my colleagues' decision today, except
for their determination to overrule TR. W. Bear-
ings,' and their reversal of the judge's conclusion
that the Respondent's published work rule 7 and
the rule on solicitation and distribution in Respond-
ent's employee handbook are unlawful.
At the outset, it bears emphasis that there is no
dispute between my colleagues and me about the
periods of time during the workday when an em-
ployer may lawfully prohibit its employees from
engaging in solicitation and distribution activities.
As a general rule, employees may engage in such
activities only during those periods of the workday
when they are properly not engaged in the actual
performance of their work tasks-i.e., before start-
ing work and after finishing work when properly
6 Our decision does not create a per se approach. Rather, we are re-
turning to the presumptions of Essex International, which concern the
facial validity or invalidity of no-solicitation rules and which can be re-
butted by appropriate evidence. An employer could be shown, as the Re-
spondent here was, to have unlawfully modified and applied a facially
valid rule, Similarly, as the Board stated in Essex, 211 NLRB at 750. an
employer could "show by extrinsic evidence that, in the context of a par-
ticular case, the 'working hours' rule was communicated or applied in
such a way as to convey an intent clearly to permit solicitation during
breaktime or other periods when employees are not actively at work."
[Emphasis added.]
1 257 NLRB 442 (1981).
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the Employer's premises, and during meal and
break periods during the workday.
Nor is there any dispute between my colleagues
and me about whether the restrictions on solicita-
tion and distribution actually imposed by the Re-
spondent in the instant case are unlawful. We agree
that they are.
The only issue in dispute between the majority
and me is whether the Respondent's rules in ques-
tion, as published, are so broad and ambiguous that
they fail to convey to employees the periods
during the workday when they may legitimately
engage in solicitation and distribution activities, or
indeed that they improperly convey to employees
that they are not permitted to engage in such ac-
tivities during certain nonwork periods of the
workday. In either event, the reasonably likely
result of such ambiguity is to interfere with and re-
strict employees in the full exercise of their rights
under Section 7 of the Act. My colleagues have
overruled precedent, and found that the Respond-
ent's rules are not unlawful as published; I would
adhere to precedent, and find that they are.
In TR. W Bearings, the Board held that work
rules which prohibit solicitation and distribution
either during "working hours" or "working time"
were presumptively invalid because, without more,
they both were susceptible to the incorrect inter-
pretation by employees that such activity was pro-
hibited during all business hours, including periods
(such as meal and break periods) when employees
are properly not engaged in performing their work
tasks. In this regard, T.R. W Bearings partially
overruled Essex International,2 which held that
only work rules which prohibit solicitation and dis-
tribution during "working hours" were presump-
tively invalid, whereas work rules which prohibit
such activity during "working time" were pre-
sumptively valid. In the view of the Essex majori-
ty, the term "working time" connotes only the pe-
riods of time spent in the performance of actual job
duties, and would "clearly convey" to employees
that they were free to engage in solicitation and
distribution during meal and break periods.
My colleagues are simply wrong in asserting that
from 1943, in Peyton Packing Co., 3 until 1981, in
T.R. W. Bearings, above, the Board had held that
rules prohibiting solicitation and distribution during
"working time" were presumptively lawful.
First, the Board in Peyton Packing drew no dis-
tinction between the terms "working time" and
"working hours." Thus:
2 211 NLRB 749 (1974) (then Members Fanning and Jenkins dissent-
ing),
3 49 NLRB 828 (1943).
The Act, of course, does not prevent an em-
ployer from making and enforcing reasonable
rules covering the conduct of employees on
company time. Working time is for work. It is
therefore within the province of an employer
to promulgate and enforce a rule prohibiting
union solicitation during working hours. Such a
rule must be presumed valid in the absence of
evidence that it was adopted for a discrimina-
tory purpose. 4 [Emphasis added.]
Clearly, Peyton Packing can be read, from its own
express terms, as support for the proposition that
rules prohibiting solicitation during "working
hours" are presumptively valid-a proposition to
which the Board has never subscribed, and one
which my colleagues and I are unanimous in re-
jecting! 5
Beyond my colleagues' misplaced reliance on
Peyton Packing6 my colleagues err in asserting that
there was a 38-year history of unbroken adherence
by the Board, prior to T.R. W. Bearings, to the
proposition that rules prohibiting solicitation during
"working time" were presumptively lawful. From
at least 1966, in Campbell Soup Co., 7 continuing
through 1972, in Avon Convalescent Center,8 and
until 1974, when Essex International overruled
Avon, the Board held precisely the opposite-i.e.,
that rules prohibiting solicitation and distribution
during "working time" were presumptively invalid.
Campbell Soup did not involve a single rule which
prohibited distribution during "working time" and
solicitation during company "working hours." Nor
was the "rule" found invalid by the Board only be-
cause it used the term "working hours." Rather-
and this is absolutely clear-there were two sepa-
rate rules at issue in Campbell Soup: one expressed
in terms of "working time," the other in terms of
"working hours," each of which was found to be
unlawfully broad on its own respective terms. As
stated in Campbell, "[t]he adjective phrases 'during
4 Id. at 843.
b The absence of a distinction between the terms "working time" and
"working hours" in the Board's Peyton Packing decision is further evi-
denced by the Board's reference in that case to meal and breaktimes as
being outside the scope of the term "working hours," id., whereas the
Board has long held, and my colleagues and I are in agreement, that meal
and breaktimes are within the scope of the term "working hours." Essex
International, 211 NLRB at 750.
6 In addition to Peyton Packing, my colleagues also cite Stoddard-Quirk
Mfg., 138 NLRB 615 (1962), as setting forth standards for no-solicitation
and no-distribution rules. But while Stoddard-Quirk, like Peyton Packing,
is instructive on the issue of what restrictions an employer may properly
actually impose on the solicitation and distribution activities of its em-
ployees, that case, again like Peyton Packing, is not determinative in re-
solving the only issue in dispute between my colleagues and me in the
instant case-i.e., what express language an employer must avoid using in
conveying to employees the restriction it is imposing on their solicitation
and distribution activities.
7 159 NLRB 74 (1966).
a 200 NLRB 702 (1972).
396
OUR WAY, INC.
employees' working time' and 'during company
working hours' are so broad and indefinite as to
embrace activities of nonworking employees during
the times that others are working." 159 NLRB at
82.
Nor is today's return to Essex "compatible" with
the Board's decision in Avon, as my colleagues
assert. The majority in Essex expressly overruled
Avon on the precise issue that divides us today-
Avon's holding that no-solicitation rules expressed
in terms of "working time" are presumptively un-
lawful. Obviously, therefore, Essex International
and Avon are themselves mutually incompatible on
the issue before us. Indeed, the one Member of
both the Essex and Avon majorities recognized that
his vote in Essex dictated a retraction of his posi-
tion in Avon. Clearly, then, an adoption of Essex
finds no support in Avon, though in struggling to
embrace both, my colleagues have shown the folly
of attempting to draw useful distinctions between
terms of equal ambiguity. Thus, contrary to the im-
pression my colleagues attempt to convey, the law
on this issue was hardly well settled when the
Board issued its decision in T.R. W Bearings, par-
tially overruling Essex International
Little, if anything, need be added to the reason-
ing set forth in Campbell Soup, in Avon, in the joint
dissenting opinion of then Members Fanning and
Jenkins in Essex International, in T.R. W Bearings,
and, indeed, in the judge's decision in the instant
case.9 All demonstrate ample support for the prop-
osition that rules prohibiting employees from en-
gaging in solicitation or distribution during "work-
ing time," without further clarification, are, like
rules prohibiting such activity during "working
hours," presumptively invalid. More specifically, in
Avon, the judge reasoned, and the Board agreed:
"Working time is for work" is a generally
accepted maxim in labor relations. It obviously
connotes a time when work is actually per-
formed, and not all of the interval between
clocking in and clocking out, which may also
include paid rest and meal periods and the like;
and it just as obviously refers to the time the
worker in question-and not any other-
should be performing his work. The limited
phrase "working time" by itself may be a term
of art for labor relations lawyers and experts,
conveying to them the full sense of the entire
maxim, perhaps even in a murky verbal set-
ting, but it is scarcely to be expected that em-
ployees will readily understand the meaning of
the phrase, and regardless of the context in
which it is used. t°
' Sec. II.L,l(a) of the attached decision.
i' 200 NLRB at 705.
In T.R. W Bearings, the Board saw no inherent
meaningful distinction between the terms "working
hours" and "working time" when used in no-solici-
tation rules, and the Board held that:
Both terms are, without more, ambiguous, and
the risk of such ambiguity must be borne by
the promulgator of the rule. Either term is rea-
sonably susceptible to an interpretation by em-
ployees that they are prohibited from engaging
in protected activity during periods of the
workday when they are properly not engaged
in performing their work tasks (e.g., meal and
break periods). As such, either term tends un-
lawfully to interfere with and restrict employ-
ees in the exercise of their Section 7 organiza-
tional rights. '
On the other hand, nowhere in Essex Internation-
al or in the instant case is there a clear-much less
convincing-explanation of why employees are rea-
sonably likely to construe the term "working
hours" as including meal and breaktimes, and to
construe the term "working time" as excluding
such times.12 In the understandable absence of any
such explanation, I would continue to adhere to
the principles that best express and protect the em-
ployees' interests, those set forth in T.R. W Bear-
ings.
'' 257 NLRB at 443.
12 Indeed, the only distinction is grounded in anomaly, as my col-
leagues single out as overly broad and ambiguous the term which actual-
ly contains the finite, measurable, discrete expression--"hours"-while
they concurrently identify as clear and unambiguous the term which ac-
tually contains the infinite, unmeasured, elusive expression--"time."
DECISION
SUMMARY OF FORMER PROCEEDINGS AND
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge:
After an organizational campaign began in 1976 by the
International Brotherhood of Firemen and Oilers, AFL-
C10 (herein the Union), the National Labor Relations
Board (herein the Board) issued a decision on September
20, 1978, finding that Our Way, Inc. (herein Respond-
ent), at its various plants in Atlanta, Georgia, committed
violations of Section 8(a)(1), (3), and (4) of the National
Labor Relations Act (herein the Act) of sufficient severi-
ty to warrant issuance of a broad order. Our Way, Inc.
Our- Way Machine Shop, Inc., 238 NLRB 209 (19 7 8).t
On October 12, 1978, following a Board election, the
Union was certified as the collective-bargaining repre-
sentative of the Respondent's employees in a unit of pro-
The Board found that Our Way. Inc. and Our-Way Machine Shop,
Inc. comprised a single employer within the meaning of the Act (238
NLRB at 210 fn. 2).
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction and maintenance employees in the Respondent's
three plants in Atlanta.2
After the filing of an unfair labor practice charge by
the Union, a complaint issued on December 14, 1978, al-
leging that the Respondent had violated Section 8(a)(5)
by refusing to provide information to the Union as the
duly certified representative of the Respondent's employ-
ees. The Respondent denies the validity of the certifica-
tion and asserts an affirmative defense based on newly
discovered and previously unavailable evidence.
On December 3, 1979, the General Counsel filed a
Motion for Summary Judgment which the Board, after a
Notice to Show Cause and response thereto from the Re-
spondent, granted on February 28, 1980. The Board
found that, commencing about November 6, 1978, the
Union had requested, and the Respondent had refused to
supply, information including names of transferred em-
ployees and changes in employment and operations. The
Board also found that the Respondent's objection to the
certification was an attempt to relitigate issues previously
determined in the absence of newly discovered or previ-
ously unavailable evidence or special circumstances. Ac-
cordingly, the Board concluded on February 28, 1980,
that the Respondent had violated Section 8(a)(5) and (1),
and ordered the Respondent to supply the requested in-
formation and bargain with the Union.
On September 23, 1980, in Case 10-UC-109, the Union
(the Petitioner therein) filed a unit clarification petition
which sought to include in the unit a plant of the Re-
spondent (the Employer therein) at Tucker, Georgia.
The Employer (the Respondent herein) filed a motion to
dismiss the petition on grounds that it was filed only
after the Union had allegedly failed to organize the
Tucker employees. On November 17, 1980, after a hear-
ing, the Regional Director for Region 10 issued a Deci-
sion and Clarification of Bargaining Unit in which he
found that the employees at the Tucker plant were an
accretion to the previously certified unit and that the
unit designation should be clarified to reflect this fact.
On the filing of a request for review by the Employer
(the Respondent herein), the Board affirmed the Region-
al Director's decision on March 11, 1981.3
Coming now to the instant proceeding, the Union filed
the charge in Case 10-CA-16207 on September 2, 1980,
and complaint issued on October 10, 1980, alleging that
the Respondent, at its Tucker plant, coercively interro-
gated employees, promulgated a rule prohibiting solicita-
tion during nonworktime in violation of Section 8(a)(1),
and discriminatorily discharged employee Betty J. Skid-
more in August 1980 in violation of Section 8(a)(3) and
(1). As amended at the hearing, the complaint further al-
leges that the Respondent, since March 6, 1980, main-
tained a rule prohibiting soliciting, collecting, or selling
for any purpose during working time and, on July 13,
1981, distributed a booklet prohibiting: (1) solicitation of
any kind or distribution of literature of any kind during
I Jt Exh. 1. The plants were located on Bernina. Krog, and Elizabeth
Streets. The Bernina Street facility was closed in 1977 and the Krog
Street plant in June 197Q, with the operations of the latter relocated to a
new plant in Tucker, Georgia. The Respondent's only remaining facility
in Atlanta was on Elizabeth Street.
I Jt. Exh. 1.
working time, (2) the same activities by an employee on
nonworking time, (2) the same activities by an employee
on nonworking time directed toward one who was
working, and (3) distribution of literatures at any time in
working areas.
On September 30, 1980, Alex Smith, an individual,
filed the charge in Case 10-CA-16288, and complaint
issued on November 6, 1980, alleging that the Respond-
ent, at its Tucker plant, solicited employee grievances for
the purpose of causing its employees to reject the Union,
threatened employees that it would close the plant if
they selected the Union as their bargaining representa-
tive, and promulgated an unlawful solicitation rule as de-
scribed above, all in violation of Section 8(a)(l).
The Union filed an original, an amended, and a second
amended charge in Case 10-CA-16742 on March 4,
April 20, and April 30, 1981, respectively, and a com-
plaint issued on May 4, 1981. It alleges that the Respond-
ent began operations at its Tucker facility in January
1978, that the unit as clarified constituted an appropriate
unit for collective bargaining, that the Respondent unilat-
erally altered its policy on absenteeism and tardiness in
such unit, and that it discharged employee Larry Grier
about February 10, 1981, for violation of such altered
rule, all in violation of Section 8(a)(5) and (1).
The Union filed the charge in Case 10-CA-16809 on
March 24, 1981, and complaint issued on May 8, 1981,
alleging that, beginning about September 25, 1980, the
Union requested the Respondent to bargain with it as the
representative of the Respondent's employees in the
clarified unit, and that the Respondent refused in viola-
tion of Section 8(a)(5) and (1).
The Union filed the original and an amended charge in
Case 10-CA-17089 on June 12 and July 9, 1981, respec-
tively. A complaint issued on July 10, 1981, alleging that
the Respondent, at its Tucker plant, coercively interro-
gated its employees and threatened them with discharge
because of their activities on behalf of the Union in vio-
lation of Section 8(a)(l).
A hearing was conducted before me on these matters
in Atlanta, Georgia, on July 27 through 30 and August
17 and 18, 1981. On the entire record, including briefs
filed by the General Counsel, the Respondent, and the
Charging Party, and on my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Georgia corporation with an
office and places of business at Atlanta and Tucker,
Georgia, where it is engaged in the manufacture and sale
of machinery. During calendar year 1980, a representa-
tive period, the Respondent sold and shipped finished
products valued in excess of $50,000 from its Atlanta and
Tucker, Georgia plants directly to customers located
outside the State of Georgia. The Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
398
OUR WAY, INC.
11. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The First Two Bargaining Sessions
The pleadings establish that the Respondent began op-
erations at its Tucker plant in January 1978. As noted
above, the Board, on February 28, 1980, ordered the Re-
spondent to supply the information requested by the
Union and to bargain with it. A few days later, on
March 4, the Union's International vice president, Jimmy
L. Walker, sent the Respondent's attorney, William F.
Ford, a letter in which he "again" requested names of
employees who had been transferred, laid off, or re-
called, and any changes in wages, employment, and op-
erations. Ford sent information in response, and testified
that he had a conversation with Walker in which he ex-
pressed doubt about the precise nature of Walker's
demand. When Walker replied that he wanted informa-
tion on employees transferred to Tucker, Ford replied
that he did not see how Tucker was involved, since the
certification was limited to the three Atlanta plants. Ford
asserted a later conversation with Walker in which the
latter requested a bargaining session "for Elizabeth
Street." Ford replied that he was not sure "where we are
insofar as the Tucker issue is concerned," but agreed to a
session on the Elizabeth Street plant.
The first meeting took place on April 24, 1980. Inter-
national Representative Eugene E. Heinz was introduced
by Walker as the Union's principal negotiator, while
Ford represented the Respondent. Heinz requested addi-
tional information, including names of employees trans-
ferred to the Tucker location, and Ford replied that he
was not there to discuss Tucker "in any way, shape,
form or fashion." The Respondent amended its answer at
the hearing so as to admit that it refused to bargain about
Tucker. Ford agreed to supply information, and this was
furnished to the Union the following day. The Union
agreed to submit a proposal and subsequently did so on
May 12.
The second session took place on May 23, 1980. Heinz
and Ford again were the principal negotiators. Heinz
again requested bargaining about the Tucker plant and
Ford again rejected this request. The Union's proposal
was reviewed and Ford submitted company counterpro-
posals on noneconomic issues.
B. The Respondent's Change in Disciplinary Policy
The Respondent had written guidelines for discipline
of employees because of absenteeism since at least June
1978. The absences were rated according to the nature of
the excuse, or the absence thereof, with "counts" or de-
merits given to each offense according to its gravity.
Specific discipline was then prescribed as an employee
reached a certain number of demerits-verbal counsel
for 32, a written warning for 48, a final written warning
for 64, and discharge for 80 "counts." 4
On June I, 1980, the Respondent issued a confidential
memorandum, effective July 1, reducing the number of
"counts" required before a specific level of discipline
would be imposed. In addition, guidelines for disciplining
probationary employees were instituted.5 The Respond-
ent estimated that this policy was 15 percent more strin-
gent than the prior system.6
C. The Next Five Bargaining Sesvions-7he
Agreement on Work Rules and the Respondent's
Failure to Supply the New Rule on Progressive
Discipline
The third meeting was held on June 19. The Respond-
ent presented a number of noneconomic proposals, in-
cluding an increase of the probationary period from 90
to 180 days, during which time the employee would not
have recourse to the grievance and arbitration machinery
of the proposed agreement.7 In the absence of evidence
that the same change was made at Tucker, the result
would have been a probationary period twice as onerous
for Elizabeth Street employees as for those at Tucker.
The Company also proposed that seniority be accrued
only on the basis of service at its Elizabeth Street plant
and that it be limited to that plant.' This would have
permitted the Respondent to destroy accrued seniority in
either plant by transferring an employee to the other
plant. The Company also proposed a management-rights
clause which gave it the right to rescind or change com-
pany rules.9
At the June 19 meeting, Union Representative Heinz
demanded copies of all rules and regulations governing
employees for which it was the bargaining agent. He also
informed Ford that the Union was beginning a member-
ship drive at the Tucker plant. Ford relayed this infor-
mation to Company President Bobbie Bailey, who testi-
fied that she learned about it in August.
The parties met for the fourth time on July I and non-
economic proposals were exchanged. On August 7, the
fifth session, Heinz told Ford that he had not yet re-
ceived copies of the rules which he had previously re-
quested.
During the sixth meeting, the next day. Heinz told
Ford that the Tucker campaign was proceeding satisfac-
torily. Ford gave Heinz copies of various company rules,
including one entitled "Absences" (G.C. Exh. 5), but did
not give him the new confidential rule on progressive
discipline for absenteeism (G.C. Exh. 3). Heinz testified
at the hearing that he "never" saw this latter document,
while Union Representatives Allen Pitts and Legusta
Foster also said that they knew nothing about it.
The Respondent's first public disclosure of the new
procedure came in the form of a letter to a Board agent
on November 3, 1980, in connection with investigation
4 G.C Exh. 20.
5
G.C. Exh. 3.
6 G.C Exh. 13.
'G.C Exh 19(cl
G.C Exh. 19(d)
9 C P Exh I: testimony of Heinz
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the charge in Case 10-CA-16288. This letter informed
the Board that employees had not been informed about
the new policy, because, if they knew "exactly how
many absences they could accumulate before being dis-
charged, the result would be that many employees would
tend to increase their absences and approach the maxi-
mum, knowing that they would risk discharge only if
they exceed the maximum" (G.C. Exh. 14).
The Respondent argues in its brief that Heinz never
asked for a definition of excessive absenteeism, and thus
appeared to submit to management's administration of
the rule. It also argues that the General Counsel knew of
the new policy from the Respondent's November 3 letter
and that the General Counsel "admitted" informing the
Union of the new guidelines. In fact, the record discloses
that counsel for the General Counsel was arguing that
the new rule was "concealed from the Union" until the
Board's investigation of one of the charges. In the course
of this argument counsel commented that "the only evi-
dence that the Union knew about these unilateral acts
comes as a result of the Board informing them." Howev-
er, Heinz and other union representatives, as noted,
denied ever seeing the document.
The Respondent's contentions are specious. Beginning
in June, Heinz repeatedly asked for copies of all rules,
and the Respondent's argument that the union negotiator
did not ask for a specific definition of excessive absentee-
ism is not convincing. With respect to the Respondent's
November 3 letter to the Board agent, general language
in the General Counsel's argument on a motion is not as
significant as the specific denials of knowledge from the
union representatives. In any event, an employer's letter
to the Board, in response to an unfair labor practice
charge, does not constitute performance of the same em-
ployer's duty, 5 months earlier, to disclose relevant infor-
mation to a designated collective-bargaining representa-
tive. The evidence thus shows and I find that knowledge
of the new rule was not disclosed to the Union, despite
the latter's request for same.
During the seventh meeting, on August 20, the parties
agreed to an amendment of the Company's management-
rights clause proposal which obligated the Company to
provide the Union "with copies of changes in rules
which the Company elects to reduce to writing."' °
Nonetheless, the Respondent did not provide the Union
with a copy of its new written rule on progressive disci-
pline for absenteeism.
D. The Union Campaign at Tucker and the
Respondent's Reaction
1. The campaign in August 1980-Betty J.
Skidmore
One of the leaders of the campaign at Tucker was
Betty J. Skidmore, who had been an employee at Eliza-
beth Street since late 1976 or early 1977 and was trans-
ferred to Tucker in January 1978. Her 1977 performance
evaluations showed that she was "substandard but
making progress" (G.C. Exhs. 11(a), (b), and (c)). She
became a "satisfactory" employee in 1978 and a "very
'O G.C. Exh. 19(h).
good" employee in 1979 and early 1980 (G.C. Exhs.
I 11(e), (f), and (g)).
Skidmore signed a union card and began attending
union meetings in August 1980. She met International
Vice President Jimmy Walker at one of these meetings in
mid-August, and received instruction from him in the
method of soliciting authorization cards. According to
the consistent and credible testimony of Skidmore and
Walker, the latter told the employees at the meeting that
solicitation could not take place during working time and
that the Company had fired several employees for violat-
ing this rule during the campaign at Elizabeth Street.
Skidmore thereafter spoke to fellow employees about the
Union and obtained about 25 signed cards. She testified
that she did so only during nonworking time.
2. The no-solicitation rules and Bailey's speeches on
August 22, 1980
a. The no-solicitation rules
The Respondent, at material times, maintained "Work
Rule 7," which prohibited "soliciting, collecting or sell-
ing for any purpose during the working time of the solic-
iting employee or the working time of the employees
being solicited." '
The Respondent also distributed a handbook to em-
ployees in mid-July 1981, reading in part as follows:
SOLICITATION/DISTRIBUTION-In order to
prevent disruption in the operation of the plant, in-
terference with work and inconvenience to other
employees, solicitation for any cause, or distribution
of literature of any kind, during working time, is
not permitted. Neither may an employee who is not
on working time, such as an employee who is on
lunch or on break, solicit an employee who is on
working time for any cause or distribute literature
of any kind to that person. Whether on working
time or not, no employee may distribute literature
of any kind in any working areas of the plant. 12
b. Bailey's speeches
1. Summary of the evidence
As previously noted, Company President Bailey
learned about the union campaign from Ford. Askham
gave Bailey a card in August, obtained from an employ-
ee, and told her that there were "lots of cards" in the
plant. On August 22, Bailey had a meeting with Ford,
" Work rule 7, G.C. Exh. 4. The work rules were identified as apply-
ing to the Respondent's employees by Charlotte Finley, the Respondent's
personnel manager. In the first proceeding, the administrative law judge
considered a rule which prohibited "soliciting, collecting or selling for
any purpose during working hours," and citing Essex Iniernational, 211
NLRB 749, 750 (1974), found it to be prima facie invalid. and that the
Respondent had not shown that it conveyed to employees the fact that
they could engage in solicitation and distribution during nonworking
time. Our Way, Inc., supra. 238 NLRB 209. 214-215 (1978), A Board
panel affirmed this conclusion, Member Penello without comment,
Member Truesdale without passing on the issue, and Chairman Fanning
with qualification (id. at 238 fn. 3). As indicated above, the prohibition in
this case applies to "working time" rather than "working hours."
12 G.C. Exh. 15, p 18.
400
OUR WAY, INC.
and then held a series of meetings with employees, with
Ford and Askham present. The latter testified that Bailey
"read" work rule 7 to the employees and "further elabo-
rated" as to what it meant. The same thing was said in
each meeting, according to Askham. Bailey, however,
testified that she did not read from a prepared script, and
that her remarks varied from group to group. She held
up one of the authorization cards, read it to the employ-
ees, and told them that they had a right to join the
Union, but also had a right to work without a union.
Bailey averred that she quoted the Respondent's work
rule 7 and "told" the employees that they could solicit
during breaks, lunch periods, and before and after work.
The company president asserted that she had a copy of
an authorization card and rule 7 at every employee meet-
ing.
Charles Askham testified that Bailey told the employ-
ees that the Company believed there was a union orga-
nizing campaign, that she held up a union card and said
that the employees had a right to be represented by a
union, but also a right not to be represented. The compa-
ny president also read work rule 7 and "further elaborat-
ed" that it meant employees could not solicit during
worktime.
The General Counsel presented four witnesses on the
subject of Bailey's speeches.13 Skidmore testified that
Bailey did not have rule 7 at the meeting which Skid-
more attended, but that the company president referred
to the rule and said it meant "No soliciting." (Bailey
denied saying this.) According to Skidmore, Bailey also
said that the Union was "no good," and that she thought
she had left all that behind her at Elizabeth Street. The
Union could not give the employees anything and she
had given them everything they had. Skidmore testified
that Bailey said work rule 7 required "firing" if an em-
ployee engaged in soliciting on the job.
Alex Smith is a former employee who was fired on
September 29, 1980. He testified about a meeting
"around" September 19. The company president held up
a union card and said that there would be no union at
Tucker, that she was the employees' representative, and
that all the Union wanted was the employees' money.
She had nothing to do with Elizabeth Street since that
plant was for the Union and she would shut down the
Tucker plant before she would let the Union come in
and take over. On direct examination, Smith testified that
Bailey also said there would be no soliciting on company
property and that was "all" she said on that subject. On
cross-examination, Smith denied that Bailey read a work
rule, but acknowledged that his pretrial statement said
that she did. However, Smith continued to maintain on
further cross-examination that Bailey said, "As stated in
the work rule, there would be no soliciting." The witness
acknowledged seeing Bailey with a union card, but
denied seeing a copy of the work rules.
Employee Sandra Banks was present at one of the
meetings, which she said took place "around August 29."
Bailey had a list of rules and referred to rule 7, accord-
ing to Banks. Banks could not recall whether Bailey ac-
tually read the rule. All that the witness could remember
" See discussion of Willie Gresham's testimony, infra. fn 14.
is that Bailey said there would be no soliciting on her
property.
Employee Betty Cammon testified on direct examina-
tion that she attended a meeting in the break room and
that Bailey said that anyone soliciting or caught passing
out union cards would be fired. Bailey also said that em-
ployees would sign away their rights by signing a union
card, that the Union could not do anything for employ-
ees, and that it could not compel Bailey to do anything
for them. On cross-examination, Cammon agreed that
Bailey "read" work rule 7 and testified that "she made a
point to say something [sic] Rule 7 .... " That was
"all" Bailey said about no-solicitation, Cammon affirmed
in response to a leading question.
On redirect examination, the witness repeated her
original version and added that Bailey did not say any-
thing about breaktime or worktime. The company presi-
dent did not read work rule 7 "word for word," accord-
ing to Cammon. She said, "No one caught soliciting
during the working hours or in your working area, you
know . . . no one caught soliciting during your working
hours during your break area. If they did, they would be
fired for passing out union cards."
2. Factual analysis
There is nothing in the language of work rule 7 which
states the time when an employee is permitted to solicit.
Bailey herself testified that she did not read from a pre-
pared script and that her remarks varied from group to
group. Askham testified that Bailey "elaborated" on the
meaning of the rule. I conclude that Bailey may have
read the rule or parts of it in some of the meetings, but
that she also gave her interpretation of its meaning.
The Respondent argues that the testimony of the Gen-
eral Counsel's witnesses contradict each other and, con-
sidered separately, are internally inconsistent. As to the
first argument, Bailey did make different speeches and
admitted that they were not the same. It should not be
surprising, therefore, that the versions of the speeches
are different. Although Banks and Smith did not know
the exact date of Bailey's speeches, their testimony clear-
ly referred to speeches made by Bailey on August 22.
I have carefully examined the record and conclude
that the Respondent's contentions with regard to internal
inconsistencies are for the most part clarifications of
prior testimony. Thus, Skidmore first testified that Bailey
said employees would be fired if they solicited. The wit-
ness then corrected this: "Well, she [Baileyl didn't say it.
She said Article 7. She never did state what it mean [sic]
but she said she thought it meant no soliciting on the job,
that you would get fired." This is a clarification rather
than an inconsistency, with the witness meaning that
Bailey said work rule 7 required discharge in the event of
soliciting on the job.
The Respondent points to Banks' indecision as to
whether Bailey "read" the rule, or "read off of it," and
to the fact that Banks "didn't pay too much attention to
it." Given these inadequacies of the witness, Banks did
testify that "the only part [she] heard was that there
would be no soliciting on her [Bailey's] property." Al-
though a witness' statement that she does not remember
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everything about a speech has some bearing on her
memory, it is insufficient ground for rejecting her testi-
mony as to those parts which she does remember. Few
witnesses are endowed with total recall.
The Respondent argues that Cammon "recanted" her
original testimony on cross-examination and then at-
tempted to give still another version on redirect examina-
tion. Cammon's testimony on redirect is not entirely
clear. Although portions of his testimony indicate that
Bailey used terms such as "working hours" and "break
area" (sic), in other portions of her redirect examination
Cammon explicitly denies that Bailey used the terms
"break time" or "work time." This latter testimony is
consistent with Cammon's statements on direct examina-
tion and with the testimony of the other three witnesses
summarized above, which recite only Bailey's flat prohi-
bitions, in various forms, against soliciting. I, therefore,
conclude that a fair summary of Cammon's testimony is
the one given on direct examination-Bailey said that
anyone soliciting or caught passing union cards would be
fired.
Although there are some differences in the employees'
testimony, there is a common element in that each of
them testified that Bailey's interpretation of the rule was
a flat prohibition. 4 This common element and the
honest demeanor of these witnesses give their evidence
greater probative weight than the general denials of
Bailey and Askham. The Respondent argues that Skid-
more's testimony should be discounted because she is an
alleged discriminatee and, therefore, has a personal inter-
est in the matter. This observation does not apply to
Cammon and Banks, however; each is a current employ-
ee of the Respondent. It is well established that "the tes-
timony of a witness in such circumstances is apt to be
particularly reliable, inasmuch as the witness is testifying
adversely to his or her pecuniary interest, a risk not
lightly undertaken." Gold Standard Enterprises, 234
NLRB 618, 619 (1978), enf. denied on other grounds 607
F.2d 1208 (7th Cir. 1979).
For these reasons, I find that Company President
Bailey on August 22 told different groups of employees
that work rule 7 meant "No soliciting," or "No soliciting
on company property" and/or that any employee caught
soliciting or soliciting on the job would be fired. I also
14 Employee Willie Gresham was presented by the General Counsel
on the subject of general solicitation and sales of products in the Re-
spondent's plants. During cross-examination and over the General Coun-
sel's objections, the Respondent was permitted to ask Gresham questions
about what Bailey said about solicitation. Asked whether he had "ever
been told that [he] shouldn't be soliciting on working time," Gresham re-
plied: "Ms. Bobbie [Baileyl had a piece of paper and she just raised up
and said there would be no soliciting on the job." On being shown his
pretrial statement, Gresham agreed that he then stated that Bailey told
employees "not to sell anything on her time," but explained that this
statement was "later on." I expressed doubt about Gresham's capacity to
understand his affidavit. The Respondent relies on parts of Gresham's tes-
timony and attacks others.
I have not relied on Gresham's testimony in making the findings noted
above However, since the Respondent raised the subject of Gresham on
cross-examination, I credit the latter's testimony that Bailey raised a piece
of paper and said there should be no soliciting on the job and I note that
this testimony is consistent with the other evidence that Bailey had work
rules and an authorization card during her speeches., I also credit Gresh-
am's testimony that Bailey "later on" said there should be no selling on
her time, and infer that this incident was unrelated to her speeches about
union solicitation on August 22, both in time and subject matter.
find that Bailey told employees that the Union was "no
good," that it could not do anything for employees, that
Bailey had given them everything they had, and that the
Union could not compel her to give them anything.
Bailey further told employees that there would be "no
union" at Tucker, that she left all that behind her at Eliz-
abeth Street, that all the Union wanted was the employ-
ees' money, and that she would shut down the Tucker
plant before she would let the Union come in.
3. Actual solicitation in the Respondent's plants
An overwhelming mass of credible testimony from a
variety of witnesses establishes the fact that many activi-
ties went on in the Respondent's Atlanta and Tucker
plants during working time that had nothing to do with
the Company's function of manufacturing and selling ma-
chinery. Company employees engaged in various enter-
prises for personal profit, such as catalog sales of Tup-
perware, flowers, pens, candy, soap, aprons, clothing,
watches, and rings. Money was raised for charitable pur-
poses such as assistance to hospital patients, fire victims,
and survivors of recent decedents. Social and religious
events such as Thanksgiving, Christmas, and birthday
parties were financed by collection activities on the part
of the employees. There was even a thriving activity in
betting on football games and other sporting events.
This activity took place in all areas of the plant, in-
cluding working areas, and during both working and
nonworking time. Supervisors engaged in such activity
themselves and condoned such activity on the part of
employees, while some of the latter were acting on
behalf of supervisors. Betty J. Skidmore took part in
such activities, without criticism from management.
Despite these activities, Askham admitted on cross-ex-
amination that the only discipline and the only discharge
of employees for solicitation in the Company's history
had been the result of union solicitation, and that the
only time it called an employee meeting about solicita-
tion was when it learned of the Union's organizational
campaign. Askham was unable to explain why solicita-
tion warranted discharge for a first offense, unlike other
offenses in its progressive discipline system.
4. The discharge of Betty J. Skidmore
a. Summary of the evidence
On August 29, a week after Bailey's speeches, Skid-
more was called into Charles Askham's office. 15 Skid-
more testified that Askham said that he had heard she
was involved with the Union and asked whether she had
been handing out any union cards. "Not while I was
working," she replied. Askham then questioned whether
Skidmore had distributed cards during breaks and Skid-
more answered, "Maybe." The plant manager asked the
same question with regard to lunch periods and got the
same answer. He then queried, "Well, you sure you ain't
'5 The pleadings establish that Askham was a supervisor within the
meaning of the Act, as the Board found in the first proceeding (209
NLRB at 211 fn. 9), and I again make the same finding.
402
OUR WAY, INC.
got anything to say before I take further action?" Skid-
more replied in the negative.
Skidmore was called back in Askham's office a second
time that day. According to her testimony, Askham told
her that she had "been charged with Section 7, talking
union in someone else's working area." After Skidmore
again said she had nothing further to say, Askham dis-
charged her.
Askham testified that "Personnel" told him that an-
other employee, Tammy Bowman, complained that Skid-
more had "harassed or intimidated" Bowman at the lat-
ter's work station. Askham then called Skidmore into his
office and said that she had been accused of soliciting
signatures on union cards at another employee's work
station, in violation of the Company's no-solicitation
rules. Askham then "restated" the accusation as one in-
volving working time, and Skidmore left after having
nothing further to say.
Askham then went to the personnel department, where
a statement had already been obtained from Bowman. In
the statement, Bowman avers that Skidmore came to
Bowman's work station on August 23 during working
time and gave her a union card wrapped in a napkin.
Further, according to the statement, Skidmore on suc-
ceeding days again asked Bowman to sign, while both
were in the bathroom."' Askham testified that he asked
Bowman whether the latter's statement was true and that
she affirmed that it was. He also asserted that Bowman
told him she wanted to quit because of Skidmore's "har-
assment." Askham did not ask Bowman how much time
Skidmore spent with the latter when she passed the
union card in a napkin.
Askham further testified that he called Skidmore back
a second time and told her that he had had no problem
with her solicitation during break or lunchtime, but that
working time was a violation of the rule and that it was
necessary for him to discharge her. Her termination
notice states that she was an "above average" employee
in four categories and an "average" employee in one, but
that she was terminated for violation of work rule 7-
"Soliciting." The notice states that she was given a prior
warning, but there is no other evidence of this (G.C.
Exh. I I(h)).
Askham had instructed his secretary to take notes of
these conversations. Skidmore did not know this fact, be-
cause the secretary was in an adjoining room. The pur-
ported notes are written in longhand and are not as re-
plete with detail as the testimonial versions. 7 The secre-
tary, Francine Griner, testified that the original notes
had been taken in shorthand, but that she transcribed
these into longhand and destroyed the original notes.
Bowman testified that Skidmore gave her a union card
in a napkin during working time. Bowman could not re-
member the date. She testified originally that Skidmore
asked her to sign the card, but then said she was not sure
what Skidmore said. Bowman averred that she told Skid-
'" R. Exh. 2.
i? According to the notes, Askham said during the first conversation
that Skidmore had been soliciting during worktime. "Betty: 'Nothing"'
"Betty: ?" Askham said that he wanted to hear Skidmore's side before
any action. and the employee said she did not recall distributing during
working time. "That's all," Askham said. The account of the second con-
versation is similar to Askham's testimony (R. Exh. 3).
more that they would be fired for doing this during
working time, whereon Skidmore asked her to sign it in
the bathroom. Bowman said she would sign it at home,
but instead threw it away. Bowman also testified that
Skidmore was at the former's work station a few min-
utes, but a demonstration of the witness' perception of
time at the hearing indicated that the alleged incident
could not have taken more than I minute. Bowman testi-
fied that she did not stop working during this conversa-
tion, and that this was the only time Skidmore spoke to
her except for solicitation in the bathroom. Bowman
thereafter reported the matter to her supervisor and was
asked to sign a statement.
Bowman said she worked for the Respondent for
about I month and then was fired for absenteeism. She
testified that she could not remember the date she was
hired or the date she was fired, and was vague on
whether she had been warned about absenteeism before
giving her statement. Bowman averred that the Respond-
ent offered to rehire her on the same day she was fired,
but did not know the reason or the individual who told
her this.
Skidmore denied handing out union cards during
working time or asking other employees to sign cards
during such time. She acknowledged solicitation for the
Union in the restroom, but testified that this was consid-
ered to be nonworking time. Also, as noted, Skidmore
participated with the other employees in the general so-
licitation of various products and fund-raising activities
during working time.
b. Factual analysis
I credit Skidmore that Askham asked her during the
first conversation whether she had been handing out
union cards. This is partially corroborated by Askham's
original testimony that he told Skidmore she had violat-
ed company rules by "talking union in someone else's
working area." It is clear that Askham's original state-
ment was that Skidmore had violated the rules by engag-
ing in union activity-without any qualification, accord-
ing to Skidmore, or in another employee's working area
without any qualification as to working time, according
to Askham.
I also find that Skidmore replied that she had not done
so on working time and that Askham then asked her
whether she had done so on nonworking time such as
breaks and lunch periods.
According to Askham's own testimony, he misstated
work rule 7 the first time he spoke to Skidmore by
saying that it prohibited solicitation at another employ-
ee's work station. I give little or no probative weight to
the secretary's notes saying that Askham incorporated
the phrase "working time" into his initial statement, be-
cause (I) the notes conflict with Askham's testimony, (2)
they are not the original shorthand notes which Griner
says she took, (3) Griner herself admitted that she did
not take down everything that was said, and (4) the
notes obviously do not reflect the entirety of Askham's
conversations with Skidmore. The notes do, however,
corroborate Skidmore's testimony that she denied solici-
tation during working time.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Askham's testimony about his initial call from the per-
sonnel department is suspect. He said that he received a
report of employee harassment or intimidation by Skid-
more, but there is nothing in this asserted report about
union activity. And yet Askham, prior to his visit to the
personnel department, immediately called in Skidmore
and told her that she had been accused of violating the
Company's no-solicitation rule. How did Askham know
this, prior to his visit to the personnel department, his
reading of Bowman's affidavit, and his interview with
the latter? I infer that Askham had knowledge of the
nature of Bowman's accusation prior to his first conver-
sation with Skidmore and, accordingly, that his testimo-
ny about the report from the personnel department is not
candid and complete.
Because Askham was thus a less reliable witness than
Skidmore, I credit her testimony about the second con-
versation with the plant manager. Askham claims that he
"restated" the rule so as to incorporate working time,
during the first conversation. I do not credit this testimo-
ny, and accept Skidmore's version. Askham obviously
did not know the rule or misstated it during the first con-
versation and, according to Skidmore's testimony, he still
had it wrong in the second conversation, after coming
back from the personnel department.
Bowman was an incredible witness. Her testimony has
contradictions and improbabilities which make it unbe-
lievable. Her appearance and demeanor were not that of
a truthful person. I reject both her testimony and her
pretrial statement as complete fabrications. Even if Bow-
man's testimony were accepted, it establishes only that
Skidmore took less than I minute of working time to
give Bowman a union card while the latter continued
working, and said something which Bowman could not
remember. As between this scintilla of evidence that
Skidmore engaged in a fleeting violation of work rule 7,
and Skidmore's adamant denial that she ever did so, the
probable truth lies with Skidmore, and I credit her
denial.
E. The September Bargaining Sessions and the Unit
Clarification Petition
The parties met on September 9, 1980, for the eighth
time, and the Respondent made various proposals. Thus,
it submitted a proposal that wages be continued at exist-
ing rates,' 8 and that the same holidays be granted with
the addition of Christmas Eve during the second year of
the contract. 19 One day of funeral leave without pay
was offered. 20 The Company proposed that it have the
right to schedule employee vacations according to com-
pany needs, and that earned vacation rights be forfeited
if not taken within 12 months after having been
earned. 2
On September 23, the Union filed its unit clarification
petition, as noted above, so as to include employees at
the Tucker plant.
Heinz testified that, during the Tucker campaign, the
Union learned that more employees had been transferred
is G.C. Exh. 19(m); testimony of Heinz
'" G.C. Exh. 19(k); testimony of Heinz
20 G.C. Exh. 19().
21 G.C. Exhs. 19(i) 19(1).
to Tucker from Atlanta than had been indicated by the
Respondent. The parties met again for the ninth time on
September 25. Heinz informed Ford of the filing of the
unit clarification petition, and again demanded bargaining
on behalf of the Tucker employees. Ford refused. Heinz
asked for a complete and accurate list of all transferred
employees, and Ford told the union negotiator to have
(International Vice President) Walker "put it in writing."
F. The Respondent's Wage and Fringe Benefit
Increases Only to Tucker Employees and the Union's
Reaction
The Respondent's practice since about 1962 to 1979
was to give annual wage fringe benefit increases to its
employees based on a survey of labor market conditions.
The wage increases were the same for employees doing
the same job in all of the Respondent's plants except for
probationary employees, who received less than regular
employees. 22 There were two increases in 1979.23
This continued to be the Company's policy through
the early part of 1980, and the wage committee then dis-
cussed the amounts of wage raises for all employees, ac-
cording to Askham. However, when negotiations with
the Union began, the Respondent decided that raises for
the Elizabeth Street employees would be handled
through the negotiations. This was the first time that the
Respondent had benefit increases to employees at only
one of its plants.
On August 19, about the time Bailey learned of the
union campaign at Tucker, and just before her speeches
to Tucker employees, the Respondent posted a notice on
Tucker bulletin boards stating that the 1980 increase
would be in November.2 4 On November 14, the Re-
spondent granted only to Tucker employees a 50-to-55
cent hourly increase,2 5 a new holiday on Christmas Eve,
a 3-day funeral leave for nonprobationary employees,
and a reduction in the requirement for a 2-week vacation
from 3 to 2 years of service.2 6 Three days later, on No-
vember 17, the Regional Director issued his decision
clarifying the unit so as to include the Tucker employ-
ees, as described above.2 7
Legusta Foster, an Elizabeth Street employee and a
member of the Union's negotiating team, obtained a copy
of the Respondent's announcement of the November in-
crease at Tucker, and gave it to union negotiator Heinz.
Foster testified that the reaction of the Elizabeth Street
employees to the news was "terrible," and that they
were going to "beat up" (International Vice President)
Walker about the "raise [they] didn't get." Walker testi-
fied that he met with a group of these employees, who
22 Testimony of Askham.
23 G.C. Exh. 16(b).
24 Ibid. The notice is addressed to "All Plant Employees" on the sub-
ject of "Annual Pay Increase Plant Employees," and states: "A number
of employees have asked about our annual wage increase. In 1979, you
will recall we had two pay increases, one in April 1979 and the last one
in November 1979. Our 1980 annual plant increase will be in November
1980."
25 Employees earning $5 hourly or more received a 55-cent raise,
while others received 50 cents.
26 G.C. Exh. 16(c); testimony of Askham.
27 Jt Exh 1.
404
OUR WAY, INC.
told him that the Tucker employees were going better
than they were, that they did the "wrong thing" joining
the Union, and that Walker had "sold out" to the Com-
pany.
G. The Final Bargaining Sessions-the Respondent's
Rejection of the Unit Clarification Decision
The 10th bargaining session took place on December
4, 1980, at which time there were "fireworks" according
to Heinz, who had received a "verbal assault" from Le-
gusta Foster that morning over the Tucker increases.
Heinz opened the session by asking when the Elizabeth
Street employees would get the same increases as those
received by the Tucker employees, and Ford said that he
was not aware of them. Heinz then showed Ford the
Company's announcement of the Tucker increase, which
Heinz had received from Foster. The company repre-
sentative responded by saying that the Union would file
a charge over a unilateral change if the Company gave
the same benefits to the Elizabeth Street employees, and
Heinz replied that the Union would waive all such rights
in return for the same benefits. Ford refused, saying that
any increase at Elizabeth Street, as well as retroactivity
of increases, had to be the result of negotiation. He asked
whether granting Elizabeth Street the same benefits
would result in a contract, and Heinz replied in the nega-
tive.
The union negotiator again demanded bargaining over
the Tucker employees, and noted that the Regional Di-
rector's unit clarification decision had included them.
Ford replied that this was not the Board's decision. After
a caucus, the Company offered I day of paid funeral
leave, which the Union accepted, and Christmas Eve
holiday in the second year of the contract, which the
Union rejected. 28 Ford also proposed a 10-cent hourly
increase for each year of a 3-year contract, which the
Union rejected.2 9
The Ilth bargaining session took place on January 6,
1981. Heinz again demanded bargaining over the Tucker
employees. Ford replied that he had appealed the Re-
gional Director's decision to the Board, and was not
going to bargain over the Tucker employees until the
Board issued its decision. The Union contended that any
conclusions reached at Elizabeth Street would automati-
cally apply to Tucker, and Ford replied that he would
have to wait and assess the circumstances when the
Board issued its decision, at which time he would decide
what action to take.
The parties had their 12th meeting on January 22,
1981, and reached agreement on the Union's proposal for
a management-rights clause, but the Company again re-
jected the Union's position on the bargaining unit. Heinz
asked for a final offer to take back to the Elizabeth
Street employees, but Ford refused "to go out on a
limb" and take any final position.
As noted above, on March 11, 1981, the Board issued
its order affirming the Regional Director's unit clarifica-
tion decision. The parties met for the last time 5 days
later, on March 17. Heinz demanded that the Company
28 Jr. Exh. 2.
29 Testimony of Ford and Heinz.
honor the Board's order and bargain over the Tucker
employees. Ford refused, saying that he did not agree
with the Board's order.
H. The Discharge of Larry Grier in February 1981
Grier had been an active and overt supporter of the
Union in the original campaign, and was discriminatorily
discharged on October 12, 1976, in violation of Section
8(a)(1) and (3), together with other union adherents. The
reason then asserted by the Company for discharging
him was that he was "harassing employees and interfer-
ing with production," a reason which the Board found to
be pretextual. Our-Way, Inc., supra, 238 NLRB 209, 226.
The complaint in Case 10-CA-16742 alleges that the
Respondent violated Section 8(a)(1) and (5) by unilateral-
ly altering its rules on absenteeism and tardiness, and by
discharging Grier again on February 10, 1981, because
he violated the changed rules. The Respondent's answer
admits that Grier was discharged about the alleged date,
but denies that it altered its rules or that Grier was dis-
charged for violation of same. Further, the answer al-
leges that Grier was reinstated on May 5, 1981. Grier
testified that he was reinstated after his second discharge,
but that he was not paid any backpay.
It is clear, as described above, that the Respondent
changed its rules on absenteeism and tardiness by a confi-
dential June 1 memorandum which became effective on
July 1, 1980, and that it did not inform the Union of this
fact. It is further obvious and I find that Grier was dis-
charged again on February 10, and reemployed without
backpay on May 6, 1981. With respect to Grier, there-
fore, the only issues are whether his second discharge
violated the Act and, if so, whether he is entitled to
backpay.
Grier testified that he became ill the day before his
second discharge and notified his supervisor. The latter
said that he could not permit Grier to see a doctor. Grier
nonetheless was ill the next day, saw a doctor, and called
his supervisor. According to Grier's uncontradicted testi-
mony, the supervisor told Grier that he knew he was
sick from the tone of his voice, but nonetheless had to
terminate him. The supervisor gave no reason, and Grier
could not recall any conversation about absenteeism.
The Respondent contends that Grier was discharged
because of its tightened "no-fault" rules on absenteeism
and tardiness, but that it reinstated him when the Board
alleged that its unilateral change of rules violated the
Act. However, the Respondent further argues, Grier
would have been discharged at an earlier date under the
old rules and, accordingly, his second discharge was not
because of his violation of the new rules. The Respondent
therefore concludes that Grier is not entitled to backpay.
These arguments require detailed examination of the old
and new rules.
The old rules are set forth in the General Counsel's
Exhibit 20, and were effective June 27, 1978. They de-
scribe the number of "hours" attached to various types
of absences, and the "code" for each type, as follows:
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Absences
Code
1
2
3
4
5
6
Type of Absence
W ith No Report ..............................................
Due to Illness.....................................................
Personal Business...............................................
Due to Disability w/ Doctor's Note...............
Partial Day.........................................................
Tardy ..................................................................
As partially described above, the progressive discipline
utilizing these "counts" extended from 32 to 80, the
latter requiring discharge. According to Personnel Man-
ager Finley, the new rules are contained in the General
Counsel's Exhibit 3, which is a copy of the Respondent's
"Confidential" guidelines dated June 1. The first four
types of absence, their code ratings, and the "counts" as-
signed to them are the same as under the old rules. The
fifth type, a "partial day" under the old rules, is defined
as "Partial Day (over 2 hrs. lost)" under the new rules,
and the same two "counts" (or "hours") are assigned.
The sixth kind of absence, called "Tardy" under the old
rules, is renamed "Partial Day (under 2 hrs.)" in the new
rules, and the penalty is reduced to one "count."
Finley testified that the only difference between the
old and new rules was dropping the penalty for partial
days or tardiness from two counts to one, and reducing
the entire schedules of counts requiring various levels of
discipline. As to tardiness, Finely said that the two-count
penalty was in effect until June 1, 1980, but that it was
dropped until September 23, at which date a "tardy" or
less than 2-hour absence incurred only one count. This is
confirmed in the written copy of the new rules (G.C.
Exh. 3). According to Finley, therefore, tardiness in-
curred two counts up to June 1, 1980, none until Septem-
ber 23, and one count thereafter. Otherwise, the new
policy became effective on July 1. The same description
of the new plan is given in the Respondent's statement of
position in Grier's case (G.C. Exh. 13).3 0
The Respondent asserted that the normal period for
determining point totals was an employee's prior 12
months. Therefore, the 12-month prior period for the
new policy effective on July 1, 1980, would normally
have begun in July 1979. The Respondent stated that this
review period would have resulted in discharge of a sig-
nificant number of employees. Accordingly, it ignored
the months of July through November 1979, and began a
new review period on December 1, 1979 (G.C. Exh. 14).
The Respondent's letter answering the charge states
that Grier accumulated 4 absent hours due to illness on
February 10, 1981, that this brought his count total to 71,
and that discharge was automatic under the new rules.
The Respondent argues that he would have been dis-
charged at an earlier date under the old rules. This argu-
ment is based on analysis of Grier's attendance record,
which was identified by Finley as the General Counsel's
3a A different description of the Respondent's new rules is given in its
statement of position in connection with the charge in Case 10-CA-
16288, which alleged the discriminatory discharge of Alex Smith (G.C.
Exh. l(f)). The Respondent's statement omits any reference to a sixth
type of absence. The fifth type is described simply as "Partial Day," and
the sixth type described in the June I memorandum is eliminated (G.C
Exh. 14).
Exhibit 12, a chronologically maintained business record
for 1980. The Respondent purports to reconstruct what
Grier's count total would have been under the old rules,
and concludes that he would have reached 80 counts by
September 1980, assessing tardiness as 2 counts, and 85
by February 1981 assessing tardinesses as 1 count each
under the new policy-totals requiring discharge in
either event. 3 ' The higher totals produced by the Re-
spondent's analysis result in substantial part from the fact
that Grier was not charged for tardiness until October
1980, in the computation which resulted in his second
discharge. The Respondent argues that Grier would
have accumulated a discharge total at a much earlier
time if tardiness had been "factored into his total absent
hours." 32
This argument and Grier's attendance record conflict
with Finley's description of the penalty for tardiness
under the old rules. As noted, the personnel manager
said that the old rules assessed two counts for tardiness
up to June 1, 1980, testimony which is corroborated by
the printed versions of the old and new rules (G.C. Exhs.
3 and 20). Yet the Respondent did not do this in the case
of Grier. His 1980 attendance record shows 12 instances
of tardiness, or code 6 offenses, from January through
May, 6 instances from June I through September 23, and
5 for the balance of the year. Tardiness offenses are cir-
cled on the General Counsel's Exhibit 12 only for the
last 3 months, and are not circled for the first 9 months.
The Respondent explains that the circled dates are those
for which Grier was "charged with absent hours" (G.C.
Exh. 13). There are ambiguous numbers in the righthand
column of the General Counsel's Exhibit 12, but they are
not explained by Finley or the Respondent could not
have penalized Grier for tardiness during the first 5
months of 1980, because it alleged that he did not reach
a discharge total of counts until February 10, 1981.
Indeed, that is what the Respondent contends in its brief.
The absence of charging for tardiness from June 1
through September 23 is consistent with the confidential
policy memorandum and Finley's testimony explaining
the hiatus in charging tardiness during that period. How-
ever, there is no explanation for the fact that Grier's tar-
diness from January through May was not charged, since
alleged company policy was to assess two counts for tar-
diness during that period. If the General Counsel's Ex-
hibit 12 was maintained on a chronological basis, then
the foremen or supervisors who recorded Grier's tardi-
ness from January through May should have charged
him for it. If this had been done Grier would have
reached the discharge total of 68, under the new rules, at
an even earlier date than the Respondent alleged that he
did. The same inconsistency is found in the attendance
record of Alex Smith. 33 These contradictions raise
doubts about the accuracy of Grier's attendance record.
31 R. Br., pp. 122-124(b).
32 Ibid.
33 G.C. Exh. 13. Although the General Counsel did not issue a com-
plaint on the charge that Smith's discharge was unlawful, and that issue is
therefore not before me, Smith's attendance record is relevant on the
issue of the accuracy of the Respondent's records.
406
OUR WAY, INC.
Finally, there is no evidence of actual discharge of em-
ployees under the old rules, as a means of assessing the
Respondent's argument that Grier would have been dis-
charged at an earlier date under those rules. In its state-
ments of position in the cases of Grier and Alex Smith,
the Respondent lists various employees who allegedly
had been discharged pursuant to the new rules (G.C.
Exhs. 13 and 14). However, there is no assertion about
discharges under the old rules. The latter were placed in
evidence by stipulation, without testimony (G.C. Exh.
20). Finley testified about work rules on attendance
which, unlike the confidential guidelines, were distributed
to employees (G.C. Exh. 5). However, these rules merely
spell out what the Company asserted its policies to be
(without disclosing to employees its confidential guide-
lines), and Finley merely testified that the work rules
were in effect.
In summary, the Respondent's argument depends on
proof of prior discharges of other employees under the
old rules as a predicate for its contention that Grier
would have been discharged at an earlier date under
those rules. Yet company documents show that it did not
apply the old rules in a manner consistent with its assert-
ed policy at that time, and there is no evidence of actual
discharge of employees under the old rules. Further, the
Respondent has submitted different explanations of its al-
leged new rules (G.C. Exhs. 13 and 14). For these rea-
sons, I do not accept the Respondent's hypothetical ar-
gument on this issue. Its statement of position (G.C. Exh.
13) asserts that Grier's second discharge was "automatic
under" its new rules, a statement which clearly implies a
causal relationship between the rules and the discharge.
Contrary to the Company's argument, therefore, I find
that Grier's second discharge was caused by his asserted
violation of the Respondent's new rules on attendance
and absenteeism.
I. Bailey's Meeting with Employees in April 1981-
Keith McGaughey
I. Summary of the evidence
a. Bailey's meeting with employees
The complaint in Case 10-CA-17089 alleges that
Bailey, about April 28, 1981, threatened employees with
discharge because of their union activities. Keith
McGaughey, a current employee at the Tucker plant,
signed a union card in 1980, wore a union sticker in
1981, and attended two union meetings. He described
several company meetings in 1980 in which Bailey said
that the Union was "no good" and that the employees
were not "putting out enough work." The Tucker em-
ployees were "nonunion," according to Bailey.
McGaughey testified that he attended a meeting of
employees about April 28, 1981, at which Bailey and
Askham were present. According to McGaughey, he
asked Bailey, since she was the employees' "representa-
tive," why he could not talk to her and why he never
received answers to questions. McGaughey asked why
Bailey always said the Union was not winning, and was
not doing the Atlanta employees any good. He said that
Bailey treated employees unfairly, and gave as an exam-
ple the fact that employees did not have uniforms to
wear at work, while Bailey did give uniforms to her
nephews. Bailey replied that employees could get uni-
forms, but that they had to see the "uniform man."
When McGaughey responded that Bailey had never told
them this, Bailey "got mad." She said that she was not
going to have anybody tell her how to run her business,
that she was tired of hearing talk about the Union, and
that the Union was not "in." The company president
stated that the Tucker employees had nothing to do with
the Elizabeth Street employees, that she did not even go
to the Elizabeth Street plant anymore, and that Tucker
was "nonunion." Bailey further declared, according to
McGaughey's testimony, that she would fire anybody
who engaged in a strike. "They'd have three days and a
letter would be mailed." Some of the Tucker employees
did engage in a strike the following month, according to
McGaughey and Askham.
In McGaughey's pretrial affidavit,3 4 he asserts that he
attended a meeting of about 50 employees on April 28,
1981. Bailey spoke about matters in general, and then
asked whether there were "any gripes." McGaughey
said that Bailey was treating employees unfairly, that she
had asked to be their representative, but that they could
not talk to her. McGaughey wanted to know why the
employees could not get uniforms, and why Bailey's
nephews had uniforms. McGaughey further asked Bailey
why she fought the Union so hard if it were true that it
could not help employees. At that point, according to
the statement, Bailey gave McGaughey a "mean look"
and told him that she did not want anybody telling her
how to run her business (G.C. Exh. 17).
Bailey testified that she had a "general meeting" with
about 50 employees in April 1981. Asked whether the
subject of the Union came up, Bailey replied, "Not that I
recall." McGaughey asked for work uniforms because of
the nature of his job in the "teardown" department, and
Bailey responded that she put "fringe benefits" into pay
rather than into uniforms. McGaughey kept "mumbling
and grumbling and interrupting" the meeting with ques-
tions about uniforms, for at least 5 minutes. McGaughey
was prolonging the meeting, but Bailey was not irritated
or disturbed. McGaughey did, however, irritate other
employees, and Bailey asked McGaughey several times
to be quiet.
Vice President Askham testified that McGaughey
asked why the Company did not supply uniforms for em-
ployees in the "teardown" department. Bailey replied
that the Company had a previous experience with a uni-
form rental company that was unsatisfactory.
McGaughey asked again why the Company did not
supply uniforms and Bailey replied that it put money for
employees into wages. McGaughey asked the same ques-
tion two or three times and employees were becoming
restless, so the meeting was adjourned.
34 The affidavit was introduced by the General Counsel after the Re-
spondent utilized it on cross-examination in an attempt to impeach
McGaughey.
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. McGaughey's meeting with Bailey and Askham
McGaughey was called into an office by Bailey imme-
diately after the employee meeting on April 28. Accord-
ing to McGaughey, Bailey "fussed him out," and said
that he "intimidated her in front of the employees." She
told McGaughey that the employees were really laugh-
ing at him, and that he should not continue to ask such
questions or the employees would continue to laugh. If
he was not happy with his job, he should be a cowboy3 5
or a truckdriver, and leave her business alone.
McGaughey replied that he had never been "a quit-
ter." He said this to Bailey, according to his testimony,
because he "had seen so many people done wrong that
somebody's got to stand up to her." The conversation
ended, according to McGaughey, when Bailey
"screamed" at him and made him leave the room.
McGaughey's pretrial statement is in similar vein. He
told the company president she did not really care about
the workers, and she told him to quit speaking up for
people, to quit, and find another job (G.C. Exh. 17).: "
According to Bailey, she told McGaughey that people
were laughing at him and "intimidating" him. "I don't
like that," Bailey told McGaughey, and wanted to know
what his "problem" was. McGaughey said that he did
not like his job in the teardown department and would
like to be in the rodeo. Bailey then asked him why he
did not join a rodeo. McGaughey replied that there was
no money in it. He was later transferred out of the tear-
down department. Askham's testimony corroborates
Bailey.
c. McGaugheys' automobile ride with Bailey and
conversation with Askham
The last complaint alleges unlawful interrogation by
Bailey on May I I and by Askham the following day.
McGaughey testified that he was fearful of losing his
job. A few weeks after the April 28 employee meeting,
as he was walking out of the company parking lot,
Bailey drove by, stopped, and told him to get into her
car. He did so, and Bailey drove him to his home, about
a mile away. They had a conversation about a robbery
which had taken place in Tucker the year before, and
about the fact that police had come to McGaughey's
house, and detectives to his place of employment, to
question him. Bailey asked McGaughey to sign a state-
ment that Willie Gresham had made him sign a union
card-"and really he [Gresham] ain't," McGaughey testi-
fied. Bailey told him that he would be taken to the office
the next day. She told him that he was from a "good
family."
McGaughey's pretrial statement avers that Bailey
asked him whether he would sign a statement that
"' McGaughey admires cowhboys, rides horses. attends rodeos, and had
a cowboy hat at the hearing. He is known as "Cowhboy" in the plant,
a" McGaughey's statement avers that Bailey also kept another employ-
ee after this meeting, and that she and Askham remained "in the room
with McGaughey and this other enmployee. On cross-examination,
McGaughey said that this other employee was not present swhen
McGaughey had his conversation with the company officials In explana-
tion, McGaughey said that he was present when Bailey talked to the
other employee, but that Bailey and Askham then took hin to Bailey's
office
Gresham had "harassed" McGaughey into signing a
union card (G.C. Exh. 17). On cross-examination,
McGaughey denied that he said this to Bailey. "I did not
tell her. She kept asking me." He testified that Bailey
kept one hand in her purse during this conversation, and
surmised that she had a gun or a tape recorder, although
he did not see either one. McGaughey said that he was
so frightened he thought about seeing a pyschiatrist.
On cross-examination, McGaughey was asked whether
he mentioned to Bailey that some detectives had come to
his house. He answered affirmatively. He was then asked
this question-whether he told Bailey that there "had
been some people with shotguns in [his] yard," and
whether the police had come with a detective. He an-
swered, "Yes," and explained that there had been a rob-
bery in Tucker, and that the police had questioned him
at work. It was a year before, in 1980, McGaughey testi-
fied. "But now these events that occurred at your house
were not last year, were they?" the Respondent's counsel
asked. "Oh, yes," replied McGaughey.
Counsel posed this question: "And you told Ms.
Tucker [sic] about the police being there and the shot-
gun?"
"It's on the police report about the robbery,"
McGaughey answered.
Counsel persisted: "Yes, I understand that, Mr.
McGaughey, but the point I want to-the question I
want to ask is did you tell Ms. Bailey about all this
during that conversation in her car?"
"Oh, yes," replied McGaughey. "We just had a gener-
al conversation on the way home, you know."
"And that was when she . . . asked if you would sign
a statement right?"
"Yes." replied McGaughey. "She tried to scare me.
She knew about the detectives coming out to the plant.
They took me into personnel."
The day after his ride with Bailey, McGaughey was
taken to the office, where he had a conversation with
Askham and Bill Hames.37 According to McGaughey,
they "tried to put words in [his] mouth." Hames told
McGaughey not to be "scared," and Askham "kept
saying ain't it true Willie James [Gresham] made you
sign a card .... " According to McGaughey, he was
"scared for [his] job and . . . said yes."
On cross-examination, McGaughey was asked whether
the subject of the police investigation of the robbery
came up. He agreed that it did, but said that Askham and
Hames "acted like they didn't believe that I got took to
[the Respondent's] office."
Asked whether he "indicated" to Askham that the de-
tective came to his house and "people with shotguns"
into his yard, the witness replied, "Oh, they come to
work," obviously referring to the detectives at the Re-
spondent's plant. Added McGaughey, "They [Askham
and Hames] acted like he [sic] didn't know about it."
Counsel continued with further leading questions
asking whether McGaughey told Bailey and Askham
about the "people with shotguns" in his yard. Answered
:17 Hames was found to be a supervisor in the first proceeding. 238
NLRB 209, 211 fn. 9
408
OUR WAY. INC
McGaughey, "They acted like they didn't believe me.
The detectives come to work."
At this point, the transcript reads:
Q. Yes or no, Mr. McGaughey.
A. What's that?
Q. Did you say the same thing to Mr. Askham
the following morning?
A. Oh, yes. He asked me. He said he didn't know
nothing about a detective coming to work and ques-
tioning me. That they were going to look into it for
me.
Bailey agrees that she drove McGaughey home one
afternoon after the April 28 meeting, but gives a com-
pletely different version of the event. She sometimes
gives employees a ride to the bus stop and, thinking that
McGaughey was going there, offered him a ride.
McGaughey accepted, saying that he had been wanting
to talk to Bailey, and the latter then drove him to his
home.
McGaughey started the conversation, according to
Bailey, by saying that he had been "spouting his mouth
off," that he really could not learn to keep it shut, and
that Willie Gresham had threatened him. On Bailey's in-
quiry, McGaughey further explained that Gresham said
there was going to be a strike, and that "anybody that
crossed the picket line, they were going to be hurt."
Gresham had a "new car the Lord have given him," full
of "guns and knives." McGaughey told Bailey, accord-
ing to the latter: "Some of the union people have been to
my house with shotguns." The police were there when
the "union people" were there, and a detective gave him
a card, according to Bailey's version of what
McGaughey said. McGaughey was afraid that Gresham
was going to burn his house down, and McGaughey's
father told him "not to mess with Willie James." Bailey
asked McGaughey whether he would sign a statement,
and the latter said that he would. After leaving
McGaughey at his home, Bailey went back to the plant
and instructed Askham to check into the matter.
Askham corroborated Bailey's testimony that she
asked him to investigate, and called McGaughey into his
office the next morning. He asked McGaughey whether
the latter felt afraid, and was told that Willie Gresham
had said that there would be guns and knives if anyone
crossed a picket line. McGaughey also said, according to
Askham, "People with guns and knives in his yard were
union related." McGaughey took a card from a detective
out his pocket and gave it to Askham. The latter testified
that he replied to McGaughey with expressions of doubt
that company employees would use guns and knives, but
promised to investigate the matter. Askham further as-
serted that he called the detective, learned that the
matter under investigation was a burglary unrelated to
the Union or the plant, and therefore dropped the
matter. The detective's card is in evidence (R. Exh. 4).
2. Factual analysis
a. The .4pril 28 meeting
Although Bailey and Askham give versions of this
meeting which are different from McGaughey's, they do
not deny his testimony that some of his questions incor-
porated statements about the Union-such as the ques-
tion why Bailey always said the Union was not winning
and was not doing the Atlanta employees any good.
Asked whether the Union came up at the meeting,
Bailey merely answered, "Not that I recall." This is not
a specific denial. The subject matter of the meeting clear-
ly involved wages and working conditions, such as work
uniforms-subjects of traditional concern to unions.
McGaughey was a union adherent and the Respondent
was continuing to resist union representation of Tucker
employees. It is, therefore, highly probable that
McGaughey incorporated the Union into his questions,
and I credit his unrebutted testimony that he did so.
McGaughey's testimony about Bailey's responses is
similarly unrebutted in Bailey's and Aksham's general
testimony. Given Bailey's resistance to the union move-
ment established in this and prior proceedings, and
McGaughey's union-oriented questions at the meeting, it
is probable that the Company would have responded as
McGaughey testified that she did. Accordingly, I credit
McGaughey that Bailey told a group of about 50 em-
ployees on April 28 that she was not going to let any-
body run her business, that she was tired of hearing talk
about the Union, that the Union was not "in" (at
Tucker), and that Tucker employees had nothing to do
with Elizabeth Street employees. She further told the
employees that she would fire anybody who engaged in
a strike.
b. McGaughey s interview with Bailey after the
employee meeting
I have carefully considered McGaughey's appearance
on the stand, his cowboy hat, and his manner of speak-
ing. It is true that his deep admiration of cowboys and
rodeos may tend to cause employee humor in the plant.
On the other hand, the questions he directed at Bailey in-
volved matters of great importance to employees which
had caused protracted struggle with management. Al-
though some employees may have laughed at him-a
matter which I do not decide-there is little likelihood
that they "intimidated" McGaughey, who was speaking
in their interest. Bailey's statement that they did so is,
therefore, incongruous. I conclude that Bailey's testimo-
ny involves a distortion of her actual statement to
McGaughey-that he had intimidated her -and I credit
McGaughey's description of this conversation.
c. McGaughey's automobile ride with Bailey and
conversation with Askham
The company witnesses continue to present distorted
versions of reality. On the basis of McGaughey's testimo-
ny corroborated by Askham's version of the police
report and by the detective's card in evidence, I con-
clude that McGaughey was questioned by police in con-
nection with a burglary, and that some of this question-
400
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing took place in the Respondent's offices. There is no
reason to doubt McGaughey's testimony that these
events took place in 1980, and I so find. They are, there-
fore, removed in time from McGaughey's automobile,
ride with Bailey and subsequent conversation with
Askham, which happened in May 1981.
Nowhere does McGaughey testify that the actual
events of 1980 involved "union people with shotguns in
his yard." And, although the Respondent's counsel stren-
uously tried to get McGaughey to testify that he told this
to Bailey, the record does not disclose any such admis-
sion. Moreover, it is incredible that McGaughey, a union
protagonist, would have protested to Bailey about al-
leged union threats to his own well-being which had oc-
curred in a prior year. It is also incredible, for the same
reason, that Gresham would have threatened
McGaughey about crossing a picket line. At the April 28
meeting, only a few weeks before the car ride in May,
McGaughey spoke up for the employees to such an
extent that he was chastised by the company president.
I credit McGaughey's specific denial that he told
Bailey that Gresham had "harassed" him into signing a
union card, his denial that Gresham actually did this, and
his affirmation that Bailey "kept asking" him whether
Gresham did so. What actually happened was a general
discussion between Bailey and McGaughey about the
burglary investigation, about which Bailey must have
had prior knowledge. It is unbelievable that the company
president did not know that the police had come to her
own plant to investigate one of her own employees in
connection with a burglary. Bailey may have surmised
that McGaughey felt insecure about this investigation-
the outcome of which is not evident from the record-
and may have tried to "scare" him, as he testified. I
credit McGaughey's version of the conversation in the
automobile ride, and find that Bailey asked him whether
Gresham had "harassed" him to sign a union card and
whether he would sign a statement to this effect.
I also credit McGaughey's testimony that Hames told
him the next day not to be "scared," and that Askham
continuously asked him whether it was true that Willie
Gresham had made him sign a union card. I credit the
testimony of both witnesses that there was discussion of
certain events that had taken place at McGaughey's
home. However, I reject Askham's testimony that it in-
volved "union related people with guns and knives." In-
stead, crediting McGaughey, I conclude that the discus-
sion involved a police investigation of McGaughey con-
cerning a burglary, and consider it incredible that
Askham and Hames did not know that the police investi-
gated McGaughey at the plant. Askham's testimony that
he dropped the investigation after learning that the al-
leged events involved a burglary, unrelated to the plant,
is preposterous. The events concerning the burglary took
place months before in 1980, and Askham knew this.
Askham testified that the detective said that the matter
involved a burglary. He did not testify that the detective
said that McGaughey complained to the police about union
harassment. There is nothing in this hearsay to warrant
an inference that McGaughey made the same complaint
to the police which, Askham asserts, he made to the
Company. Finally, McGaughey would have had no
reason to give an erroneous report about union harass-
ment to Askham, since he was a union adherent. Ask-
ham's testimony is therefore false. When McGaughey,
after repeated inquiries, told Askham and Hames that
Gresham made him sign a union card, he did so, as he
testified, because he was "scared for [his] job," not be-
cause he was "scared" of Gresham or the Union. I credit
McGaughey's denial at the hearing that Gresham did in
fact engage in any such coercion. Although he may
appear eccentric, I consider McGaughey to be a more
truthful witness than Bailey or Askham. As a current
employee he was testifying against his own interest, a
factor giving weight to his testimony. Gold Standard En-
terprises, supra. Askham "dropped the investigation," not
because the police told him about a burglary, but be-
cause he could not rely on McGaughey to sign the false
statement against Gresham which the Company wanted.
The company officials attempted to confuse an ingenu-
ous employee by pretending lack of knowledge of a
prior event in order to create the illusion that it was a
current event. They then combined McGaughey's proba-
ble concern over the burglary with his undoubted worry
about his job which resulted from his speaking up at the
April 28 meeting and subtly tried to substitute his fear
over these real matters for a purely fictional fear of
Gresham. No wonder that McGaughey thought about
seeing a psychiatrist! The Respondent's object was
clear-to create false evidence of union coercion of em-
ployees by preying on the fears of a gullible employee.
The Respondent's evidence resembles a scenario from
the theater of the absurd more than it does the conduct
of labor relations.
The foregoing considerations warrant an inference that
the Company believed McGaughey to be vulnerable in
connection with a criminal investigation, and sought to
obtain from him a false statement that another employee
had coerced him into signing a union card. In the course
of this attempt, Bailey asked McGaughey whether an-
other employee had made McGaughey sign a union card
and Askham repeated the question the next day. These
events took place in early May 1981.
J. Other Evidence of Animus
Maxey Cox, an employee at the Elizabeth Street
plant,38 testified that he had a conversation in April 1981
with Willard Kelly 3 9 about rumors of a pending strike.
Kelly stated, according to Cox, that Company President
Bailey had said that the employees would not get a raise
if they went on strike. Kelly testified that he supervised
17 employees and that 16 of them went out on strike, but
denied hearing any rumors of the strike before it hap-
pened. He also denied the statement attributed to him by
Cox and denied attending any company meetings con-
cerning the strike. He also said he had no knowledge
that the Tucker employees had received a raise.
Employee Orlando Adwaters, a member of the union
negotiating committee, testified that during the strike the
as In the former proceeding, the Board found that Cox had been dis-
criminatorily laid off and suspended. 238 NLRB 209. 237
a9 Kelly testified that he is the supervisor of the teardown department
at the Elizabeth Street plant.
410
OUR WAY, INC.
Company obtained food for "scabs" from a "fast-food"
purveyor called "Zesto's." Adwaters also stated that on
June 15, 1981, when strikers had returned to the plant,
another employee, James Jones, told Kelly that he had
"to crank up the Zesto's wagon." Kelly assertedly re-
plied, "Well, that's all right. Your day is coming because
every dog has his day."
Kelly admitted that he obtained lunch for nonstriking
employees during the strike, but insisted that he paid for
it. He admitted that Jones, after the strike, asked him to
get some food at Zesto's for the returning employees, but
denied replying that the striking employees would "get
theirs," or that "every dog has his day." Instead, Kelly
testified, he made the same offer to the returning strikers
that he did to the nonstriking employees-he would go
get the food if they would supply the money. The em-
ployees did not take him up on his offer, according to
Kelly.
The General Counsel submitted this evidence as back-
ground evidence of animus and did not allege any sepa-
rate violations of the Act.
I interpret Cox's testimony as meaning that Kelly ob-
tained the food for nonstrikers rather than that he paid
for it. Cox and Adwaters were more believable witnesses
than Kelly. It is almost incredible that a supervisor in a
company wracked by labor disputes over union represen-
tation, wages, and other issues resulting in a strike would
have had no discussions with his superiors about these
problems which undoubtedly affected morale and pro-
duction. I credit Cox and Adwaters as to the statements
attributed to Kelly.
K. The Strike at the Tucker Plant
The testimony of Ford, Askham, and McGaughey es-
tablish that there was a strike at both the Tucker and
Elizabeth Street plants in May 1981. Askham estimated
that "approximately ten percent" of the Tucker employ-
ees struck, while McGaughey's affidavit affirms that
about one-third of these employees were on strike (G.C.
Exh. 17). The Respondent's brief asserts that "many" of
the Elizabeth Street employees were strikers (R. Br. p.
18). The strike lasted about a month, and most of the em-
ployees then returned to work.
L. Legal Conclusions
I. The alleged independent 8(a)(1) violations
a. The alleged unlawful no solicitation/distribution
rules
Under established law, any restriction during non-
working time on solicitation of employees to engage in
protected activity, and on distribution of union literature
during nonworking time in nonworking areas, is pre-
sumptively violative of the Act, absent a showing that
the employer's special needs for maintenance of produc-
tion or discipline justify an exception. Beth Israel Hospital
v. NLRB, 437 U.S. 483 (1978).
On the other hand. a rule prohibiting distribution in
work areas is lawful on its face. La Marche Mfg. Co., 238
NLRB 1470 (1978). Until recently, the Board held that a
rule prohibiting solicitation during "working time" was
presumptively valid, but that a prohibition against such
activity during "working hours" interfered with the stat-
utory rights of employees. The reasoning behind this dis-
tinction was the Board's former position that the term
"working hours" includes the nonworking time of break
periods, when employees may legitimately engage in
protected activity, whereas the term "working time
means only the time that employees are actually work-
ing. The presumptive invalidity of a rule prohibiting so-
licitation during "working hours," however, could be re-
butted by evidence that the employer applied or commu-
nicated the rule in such a way as to convey an intent to
permit solicitation during nonworking time. Essex Inter-
national, supra.
More recently the Board has concluded that the terms
"working hours" and "working time" are both ambigu-
ous, and susceptible to interpretation by employees that
they apply to periods in the workday when the employ-
ees are properly not engaged in work functions, such as
breaktimes. An employer who does not intend that his
employees misinterpret the rules in this way need only
frame them in such manner that they clearly do not
apply to breaktime and other nonworking time. There-
fore, a prohibition against solicitation during "working
time," like "working hours," is, unless clarified, presump-
tively invalid. TR. W. Bearings, 257 NLRB 442 (1981).
I conclude that work rule 7 was lawful on its face
under Board law applicable at the time that Bailey made
her speech in August 1980. However, as previously
noted, the original complaint in Case 10-CA-16207 al-
leges that the Respondent's unlawful rule was promulgat-
ed during Bailey's speech. The rules stated by the Re-
spondent's president were significantly different from the
published rule, although Bailey told her listeners that her
statements came from the rule. Thus, Bailey prohibited
any solicitation whatever, any solicitation on company
property, and/or any solicitation in another employee's
work area during working hours. All of these prohibi-
tions were unlawful under Board law then in effect. The
first two statements were impermissibly broad, while, as
to the third, Bailey failed to convey an intention that so-
licitation during working hours would be permitted on
nonworking time. I, therefore, conclude that the Re-
spondent orally promulgated and enforced a new rule on
solicitation, or modified and enforced its old rule in an
unlawful manner violative of Section 8(a)(1). Timken
Co., 236 NLRB 757 (1978). 40
I also conclude that the Respondent had knowledge of
the other solicitation, not involving union activities,
which took place on a widespread scale in the plants
during both working and nonworking time. This is a
necessary inference because of the supervisory involve-
ment in this solicitation. Accordingly, the Respondent se-
lectively applied its published rule in a discriminatory
manner so as to ban only union solicitation, in violation
of Section 8(a)(1). Although discriminatory application
of the published rule was not alleged in the complaint,
the issue is closely connected to the subject matter of the
40 See also Clougherty Packing Co. 244 NLRB 901 (1979); Staco, Inc.,
244 NLRB 461 (1979), Transcon Lines, 235 NLRB 1163 (1978).
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, and has been fully litigated. Timken Co.,
supra.
The Respondent argues that the new rule stated in its
employee handbook is lawful under the Board's criteria
in T.R.W. Bearings, supra, because the rule "clearly de-
fines the phrase 'working time' as not including meal
time or break time . .. ."
I do not agree. The first sentence in the handbook rule
contains a broad prohibition against solicitation and dis-
tribution during "working time," without defining that
phrase and without stating that solicitation may take
place during breaktime and mealtime. The second sen-
tence is also cast in prohibitory language and further re-
fines the first prohibition so as to make certain that it ap-
plies even though the soliciting employee is not on work-
ing time, such as "lunch or on break," as long as the so-
licited employee is on such time. It is only in this nega-
tive language and elliptical manner that the phrase "not
on working time" is defined, and it is limited to the solic-
iting employee.
It is true that a trained logician might deduce that the
definition of "not on working time" means the same
whether applied to solicited or soliciting employee, and
might make the further inferential leap that solicitation is
permitted when both employees are on breaks or lunch
periods. Nowhere is this expressly stated in the new rule,
however. Nowhere does the rule state when the employ-
ees may engage in solicitation or distribution. Rather, it
tells them when they may not do so. The third sentence,
although part of it is a statement of the rule in La
Marche Mfg. Co., supra, further uses the phrase "working
time" without explanation.
I do not believe that a rule requiring training in medie-
val logic as a prerequisite to its understanding can be
said to be "clarified" within the meaning of TR. W. Bear-
ings. The Respondent's handbook rule is not framed in
the language of the workplace, and is not the kind of
language employees may be expected to understand. This
obscurity has a tendency to interfere with employees' ex-
ercise of their rights under the Act. Its coercive effect is
augmented by the fact that the Respondent utilized a
purported violation of its former rule as a pretext in its
discriminatory discharges of three employees in the prior
proceeding, and by the fact that the Respondent's presi-
dent misstated and modified work rule 7 in August 1980
in an unlawful manner, coupled with threats of discharge
for its violation, as I find hereinafter.
With this coercive background, the Respondent faced
a heavy burden in framing its 1981 rule in a manner
which would clearly convey to its employees when they
could engage in union solicitation and distribution of
union materials. The Respondent failed to do so, and I,
therefore, conclude that the Respondent's 1981 handbook
rule is unduly broad and violates Section 8(a)(1).
It is obvious that work rule 7 also fails to meet the cri-
teria set forth in T.R. W. Bearings, supra, since it uses the
ambiguous phrase "working time" without clarification.
The Respondent, however, argues that T.R.W. Bear-
ings may not be applied retroactively so as to justify a
finding that work rule 7 was unlawful prior to July 31,
41 R. Br., p 127
1981 (the date of issuance of T.R.W. Bearings), since the
rule was permissible under law applicable at that time.
Such retroactive application of the Board's policy would,
according to the Respondent, raise "serious constitution-
al and equitable problems."4 2 The Respondent cites Lil-
liston Implement Co., 171 NLRB 221 (1968), where the
Board refused to find unlawful an employer's polling of
its employees' union sympathies under circumstances
which were lawful at the time under the Board's criteria
in Blue Flash Express, 109 NLRB 591 (1954), but which
did not include a secret ballot and were therefore unlaw-
ful under the Board's later rule at the time of litigation,
as stated in Struksnes Construction Co., 165 NLRB 1062
(1967). The Board refused to apply the Struksnes rule
retroactively in Lilliston, "[i]n the absence of any circum-
stances dictating a contrary course," including the fact
that the employer had not committed any other unfair
labor practices. Lilliston Implement Co., supra, 171
NLRB 221 at 225.
The Respondent also relies on the decision of the
Court of Appeals for the Eighth Circuit partially deny-
ing enforcement of the Board's Order in Drug Package
Co., 228 NLRB 108 (1977), enfd. in part 570 F.2d 1340
(8th Cir. 1978). In that case the administrative law judge
recommended a bargaining order on the authority of
Steel-Fab, 212 NLRB 363 (1974), and the Board, which
had thereafter issued its decision in Trading Port, 219
NLRB 298 (1975), ordered retroactive bargaining on the
rationale of the latter case. The court's disagreement
with this remedy was predicated on its opinion that there
had never been an 8(a)(5) violation in the first place, and
on the fact that the employer had rejected the union's
offer of reinstatement of strikers, relying on the Steel-Fab
doctrine that, if a bargaining order did issue, it would be
prospective only. The Board considered the strikers to
be unfair labor practice strikers entitled to reinstatement,
with the employer subject to "substantial backpay liabil-
ity." "It would be fair to assume," the court stated, "that
the Company, had it known of the possibility of these
penalties, might have given the Union's offer greater
consideration." Accordingly, the Eighth Circuit denied
enforcement of this portion of the Board's Order (570
F.2d 1340 (1978)).
The Charging Party, on the other hand, relies on
Deluxe Metal Furniture Co., 121 NLRB 995 (1958),
where the Board dismissed a representation petition on a
revised contract-bar policy, with the statement that to
"allow the instant proceeding as an exception without
permitting a similar exception to all pending cases would
be inequitable.... The judicial practice of applying
each pronouncement of a rule of law to the case in
which the issue arises and to all pending cases in what-
ever stage is traditional and, we believe, the wiser course
to follow" (id., 121 NLRB at 1006-1007).
The issue posed by these contrasting views has been
considered in numerous cases and articles. 43 It is mani-
42 R. Br. pp. 126-129.
43 NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974); SEC v. Chen-
ery Corp., 332 U.S. 194, 203 (1947); NLRB v. Majestic Weaving Co., 355
F.2d 854, 860-861 (2d Cir. 1966); NLRB v. A.P. W. Products, 316 F.2d 899
(2d Cir. 1963); NLRB v. Teamsters, 22. F.2d 343 (8th Cir. 1955); Davis,
Administrative Law Treatise § 17.08.
412
OUR WAY, INC.
festly beyond the scope of this decision to survey the
entire field. Instead, I rely on the recent summary by the
Court of Appeals for the Eighth Circuit which, after set-
ting forth the Board's authority to announce new rules of
law in adjudicatory proceedings, stated as follows: "In
deciding whether to exercise that power, however, the
Board must weigh the benefits to be achieved by the
new interpretation of the law against the detrimental ef-
fects of retroactive application of the new rule." Drug
Package Co. v. NLRB, supra, 570 F.2d 1340, 1346, fn. 5.
Consideration of two cases will illustrate the Board's
approach to this problem. In Perma Vinyl Corp., 164
NLRB 968 (1967), a bona fide purchaser acquired an en-
terprise with knowledge of the predecessor's unfair labor
practices. Under applicable law at that time,4 4 the pur-
chaser was not responsible for remedying the unfair
labor practices of the predecessor. The Board reconsid-
ered the matter, and, balancing the equities, concluded
that in such circumstances a successor should be held re-
sponsible for remedying the predecessor's unlawful con-
duct. However, it deemed a requirement of full remedial
action on the part of the successor in the case at bar to
be "inequitable," since there was no such requirement
under applicable law at the time of the transaction.
Nonetheless, since the successor was still doing the same
work, the Board held that a requirement of reinstatement
of the discriminatees "would plainly serve a salutary pur-
pose, without subjecting [the successor] to any unfair
burden," and so ordered (id., 164 NLRB at 970).
Finally, prior to Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), the Board had
issued decisions stating or implying that the right of eco-
nomic strikers to reinstatement was determined at the
time of application therefor, and, if a replacement held
the position at that time, the striker was thereafter enti-
tled only to nondiscriminatory treatment. The Board's
reconsidered view, as set forth in its decision, was that
such strikers were entitled to reinstatement to fill posi-
tions left by departing permanent replacements, absent a
legitimate and substantial business justification for failing
to do so. In imposing this burden on the employer, de-
spite the fact that it represented a change in prior law,
the Board stated that former practice was "inherently de-
structive of employee rights," and noted that the em-
ployer in fact was discriminatorily motivated (id., 171
NLRB at 1369).
On appeal, the Court of Appeals for the Seventh Cir-
cuit considered the employer's argument that imposition
of backpay liability was improper because revised Board
policy was being applied to conduct which was lawful at
the time it was performed. The court, however, accepted
the Board's argument that, unless the disadvantaged
strikers were compensated, they would have been penal-
ized for exercising statutorily protected rights, and the
effect of discouraging such exercises would not be com-
pletely dissipated. Accordingly, the Board's order was
enforced. Laidlaw Corp. v. NLRB, supra.
In application of these principles in the instant case,
we first note that the amended complaint in Case 10-
CA-16207 in effect alleges the illegality of work rule 7
4 Syms Grocer Co. 109 NLRB 346 (1954).
since March 6, 1980.4 5 Although I have heretofore
found that the Respondent promulgated an unlawful rule
and/or modified work rule 7 in an unlawful manner, in
Bailey's speech on August 22, 1980, and that the Re-
spondent's 1981 handbook was unlawful under the
T.R. W. Bearings doctrine, these findings do not resolve
the alleged illegality of work rule 7 since March 6, 1980.
Retroactive application of T.R. W. Bearings would clearly
result in such a finding. In the language of the Court of
Appeals for the Eighth Circuit in Drug Package, would
the benefits achieved by such retroactive application out-
weigh the detrimental effects?
The Board has already adopted the former administra-
tive law judge's characterization of this Respondent as
an employer with "profound antiunion animus." Our
Way, Inc., supra, 238 NLRB at 227. The facts in this pro-
ceeding can only serve to emphasize that judgment, and
to underline the Respondent's adamant opposition to the
basic policies of the Act. One of the Respondent's princi-
pal tools in its efforts to thwart the statutory rights of its
employees is the use of work rules. Thus, it maintained
an unlawful no-solicitation rule in 1978, and used it as a
pretext in the unlawful discharge of three employees as
delineated in the last decision. It then changed the writ-
ten version of the rule so as to conform to Essex Interna-
tional, but then, on the emergence of union activity at
the Tucker plant, promptly issued an oral modification of
that rule which was unlawful-and, as I find hereinafter,
again utilized such rule as a pretext in the unlawful dis-
charge of still another employee (Skidmore). Finally, on
issuance of the Board's T.R. W. Bearings decision, the Re-
spondent again purported to comply with Board law, but
again evaded it.
On this record, it is fair to say that the Respondent has
demonstrated a proclivity to utilize work rules to violate
the Act. The Respondent bears no resemblance to the
law-abiding employer in Lilliston, cited by the Company.
Protection of the rights of its employees would be aided
by determination of all aspects of its unlawful conduct,
and, accordingly, would be beneficial.
On the other hand, the Respondent will suffer no fi-
nancial detriment whatsoever. Unlike the employers in
Perma Vinyl, Laidlaw, and Drug Package, retroactive ap-
plication of the Board's new rule in TR. W. Bearings will
not require the Respondent to reinstate any employee or
to pay any backpay. It will merely require that a public
record more fully disclose the Respondent's unlawful
conduct. Since the Board with judicial approval imposed
financial requirements on the employer in Laidlaw by
retroactive application of a new rule, a fortiori it should
do so in the instant case where no financial burden is
being imposed. Accordingly, by retroactive application
of T.R. W. Bearings, I find that, as alleged, the Respond-
ent maintained an unlawful no-solicitation rule since
March 6, 1980.
4, The 10(b) period for the charge in that case.
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Additional allegations of unlawful interference.
restraint, or coercion
I further conclude that the Respondent violated Sec-
tion 8(a)(1) of the Act under established Board law by
the following acts and conduct:
I. On or about August 22, 1980, by Bobbie Bailey tell-
ing employees that anyone violating an oral rule against
solicitation (which was unlawful) would be fired, that
she would shut down the plant before she would let the
Union come in, that the Union could not compel her to
give anything to employees, and that there would be no
union at Tucker. The latter two statements were unlaw-
ful because they conveyed to employees an impression of
the futility of their union activities. 4 6
2. On or about August 29, 1980, by Charles Askham
asking an employee whether she had been handing out
union cards and whether she had been doing so during
lunch periods.
3. On or about April 28, 1981, by Bobbie Bailey telling
employees that she would fire anybody who engaged in
a strike.
4. On or about May 11, 1981, by Bobby Bailey, and on
May 12, by Charles Askham, asking an employee wheth-
er another employee made him sign a union card, and so-
liciting an employee to make a false accusation of coer-
cion by another employee in connection with the signing
of union cards.4 7 Glazers Wholesale Drug Co., 209 NLRB
1152, 1156 (1974).
2. The alleged violation of Section 8(a)(3)-Betty J.
Skidmore
As recounted above, Skidmore steadily improved
during about 3 years of employment to the point where
she was rated a "very good" employee in early 1980. In
August 1980 she became one of the leaders of the union
campaign at Tucker, spoke to fellow employees, and ob-
tained about 25 signed cards. She was discharged on
August 29, 1980, assertedly because of violation of work
rule 7-"Soliciting."
In the former proceeding, the Board adopted the find-
ing of the administrative law judge that the Respondent
discriminatorily discharged three employees, despite the
Company's contention that they had "harassed" other
employees to take union cards and patches and had
"interfered" with production. When one of the three
(Grier) asked Bailey to explain what she meant by "inter-
fering" with other employees, Bailey refused to give an
explanation. Our Way, Inc., 238 NLRB 209 at 226 (1978).
Although the Respondent now asserts that soliciting in
violation of work rule 7 was the reason for Skidmore's
discharge, Company Vice President Askham said that
the personnel department informed him that Skidmore
had "harassed or intimidated" another employee-lan-
guage similar to Bailey's in the former proceeding. Fur-
ther, Askham admitted that the only discharges or disci-
pline of employees under work rule 7 were for union so-
46 Bailey's statements that the Union could not compel her to give
anything to employees, and that there would be no union at Tucker, are
riot alleged in any of the complaints. However, they are closely related to
the issues in the proceeding and were fully litigated. Accordingly, find-
ings on these statements are warranted under established law.
47 The latter finding is not specifically alleged. See fn. 46, ibid.
licitation, despite massive evidence of other types of so-
licitation during working time. Indeed, the only time that
the Respondent called an employee meeting about solici-
tation was after it learned about the union campaign at
Tucker. Nor did Askham know why a first offense for
soliciting was so heinous an offense that it required dis-
charge, unlike other elements in the Respondent's pro-
gressive discipline system. The Respondent's reliance on
Bowman's testimony and her affidavit48 give it no assist-
ance for reasons set forth above.
The disparate and selective nature of the Respondent's
application of work rule 7 clearly shows that it was di-
rected at union solicitation and no other. Under estab-
lished law this constitutes evidence of discriminatory mo-
tivation. This evidence is augmented by the disparate se-
verity of the penalty of discharge and by its unduly
harsh nature, for a first offense of solicitation. The Re-
spondent's "profound" union animus, already established
in the former case, may be relied on as evidence in this
proceeding.4 9 It is augmented by further evidence of
animus herein.
For these reasons I find that the Respondent discrimin-
atorily discharged Betty J. Skidmore on August 29, 1980,
because of her union activities, in violation of Section
8(a)(3) and (1) of the Act.
3. The alleged violations of Section 8(a)(5)
a. The Respondent's refusal to bargain
The pleadings in Case 10-CA-16809 establish that be-
ginning on September 25, 1980, and continuing thereaf-
ter, the Union requested bargaining in the unit as clari-
fied by the Regional Director's decision, including the
Tucker plant, and that the Respondent refused to do so.
The Respondent asserts its willingness "to bargain in
regard to the Elizabeth Street employees pursuant to the
original certification." However, it contends that it is
under no obligation to bargain concerning the Tucker
employees because the Regional Director's unit clarifica-
tion decision "was based upon clearly erroneous findings
of fact and even more erroneous conclusions of law." 50
The Company argues "special circumstances" which
require review of the Regional Director's decision. Thus,
it contends that "the Union admittedly condtcted an un-
successful organizing drive in the late summer and early
fall of 1980" among the Tucker employees, and later
called for a strike (in May 1981) which was joined by
"only about 10 percent" of the Tucker employees, al-
46 The similarity between Bowman's statement about Skidmore and
the statement which the Respondent tried to get from McGaughey about
Gresham is obvious. However, no finding is made concerning the cir-
cumstances surrounding Bowman's execution of her affidavit.
49 J P. Stevens & Co. v. NLRB, 638 F.2d 676 (4th Cir. 19BO), enfg. as
modified 245 NLRB 198 (1979); NLRB v. Clinton Packing Co., 468 F.2d
953 (8th Cir. 1972), enfg. as modified 191 NLRB 879 (1971). The Re-
spondent argues that its former unfair labor practices should not be relied
on because they occurred in 1976 and 1977 and "are positively gray with
age" (R. Br., p. 8). However, in the J. P. Stevens case, the Board went
back 14 years to make a similar inference. J. P. Stevens A Co, supra, 245
NLRB 198 at 215.
"'" R. Br., p. 11.
414
OUR WAY, INC.
though "many" of the Elizabeth Street employees were
strikers. s
The Respondent characterizes these events as "con-
tinuing expressions of disinterest" in the Union by the
Tucker employees, and claims that the Board's approval
of the Regional Director's decision denied Tucker em-
ployees the right of choice guaranteed them under the
Act. 52
The Respondent then engages in extended argument
seeking to establish that (1) the Regional Director made
erroneous factual findings, (2) the Company's Tucker
plant is not substantially the same as its preexisting oper-
ation at the Elizabeth Street facility, (3) a substantial per-
centage of the Tucker employees are not transferees
from Elizabeth Street, and (4) the Tucker plant is not an
accretion to the Elizabeth Street unit. 53
None of these arguments has merit. The Respondent's
argument against the Regional Director's decision in the
unit clarification proceeding were or could have been
raised in that proceeding. The Respondent requested
review of that decision and its request was denied by the
Board. Accordingly, pursuant to Section 102.67(f) of the
Board's Rules and Regulations, those issues may not be
relitigated in this proceeding. Heidelberg Eastern, Inc.,
235 NLRB 1523 (1978). The Respondent's argument that
the Union's campaign at Tucker was "admittedly unsuc-
cessful" is vague and without evidentiary support. Its
only other argument alleges a stated percentage of
Tucker employees who joined the strike in May 1981-
as to which the evidence is conflicting. Whatever the
percentage, it did not serve as an objective consideration
to support a good-faith doubt that the Tucker employees
did not wish the Union as their representative, since "an
employee's decision not to support a strike does not es-
tablish that he or she has rejected the Union as his or her
collective bargaining representative." Pennco, Inc., 242
NLRB 467, 469 (1979). 5 4
Even if the Respondent had established failure of
Tucker employees to support the Union, such evidence
would not assist the Respondent's position because any
such failure could only have taken place in the context
of the Respondent's unfair labor practices at the Tucker
plant and, therefore, could not be relied on as objective
evidence of loss of majority status established by the cer-
tification and its amendment. Pioneer Inn, 228 NLRB
1263 (1977), enfd. 578 F.2d 835 (9th Cir. 1978). Further,
even without the presumption of majority status at the
Tucker and Elizabeth Street plants established by the
clarified certification, the Respondent's present and
former unfair labor practices have been so "outrageous"
and "pervasive" that their coercive effect cannot be
eliminated by traditional remedies. For example, as more
fully discussed hereinafter (subsec. (b)), the Respondent
has disobeyed the Board's former order that it supply
employment and wage data to the Union. Together with
the Respondent's former and current unfair labor prac-
tices, this recalcitrance warrants a bargaining order even
'1 Ibid., pp. 17-19. The Respondent's statement that 10 percent of the
Tucker employees joined the strike is based on Askham's testimony.
McGaughey stated that about one-third of the employees engaged in the
strike.
52 Ibid.
":. Ibid. pp. 19-44.
s4 See also Pepsi-Cola-Dr. Pepper Bottling Co.. 219 NLRB 1200 (1975).
in the absence of majority status. NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969).
It is settled law that, after expiration of a certification
year, a certified union enjoys a rebuttable presumption of
continuing majority status. "An employer may rebut this
presumption by affirmatively establishing that the union
has, in fact, lost its majority status, or that it had suffi-
cient objective bases for reasonably doubting the Union's
continuing majority status ... " (Pennco, Inc., id.) The
Respondent has not met either of these criteria. Accord-
ingly, since it admits that it refused to bargain with the
Union in the unit as clarified, it thereby violated Section
8(a)(5) and (1) of the Act.
b. The Respondent's unilateral change in the policy on
absenteeism and tardiness
As described above, the Respondent implemented a
stricter policy on tardiness and absenteeism, including ab-
senteeism because of illness, without notifying the Union.
It has long been established that a sick leave plan is a
term or condition of employment, and that an employer
with an obligation to bargain over such plan violates
Section 8(a)(5) by unilaterally changing such a plan with-
out bargaining with the employees' representative.
NLRB v. Katz, 369 U.S. 736 (1962). More recently, the
Board with judicial approval has concluded that an em-
ployer violated Section 8(a)(5) by unilaterally instituting
and enforcing a written discipline system without first
bargaining with the union. Electri-Flex Co., 228 NLRB
847 (1977), enfd. as modified 570 F.2d 1327 (7th Cir.
1978). This is what the Respondent did in this case, and
the same principles apply.
As set forth in the factual discussion above, the Re-
spondent argues that (1) the Union acquiesced in the
stricter guidelines and (2) the Company did not conceal,
but rather disclosed its new policy to the Union by
means of letters to an agent of the Board. These argu-
ments are invalid for reasons already given. The Compa-
ny actually supplied the Board with two different ver-
sions of the new rules. The Respondent additionally
argues that an employer is free, absent discrimination, to
choose more efficient ways to enforce its workplace
rules, citing Rust Craft Broadcasting of New York, 225
NLRB 327 (1976), and notes that there is no complaint
allegation that its altered rules were discriminatory. The
Company points to the fact that its published rule impos-
ing discipline for absenteeism (G.C. Exh. 4, rule 3) was
not changed-only the secret rule which decided at what
levels more stringent discipline would be imposed.
The Respondent's reliance on Rust Craft is misplaced.
In that case an employer installed timeclocks because the
employees' recording of their time had been slipshod. As
the Board pointed out, however, the employer did not
initiate "new and more stringent rules." Although it
changed a "mechanical procedure" for recording the em-
ployees' time, the rule itself "remained intact" and the
change was "inconsequential" for those employee who
had conscientiously recorded their time in the past. It is
obvious that this not the case herein-the Employer's
rule specifying the level of absenteeism at which disci-
pline would be imposed was changed to the employees'
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
detriment. The Company's contention that this secret
change was not really a change in rules is sophistical. Its
argument in the name of efficiency was answered by the
Court of Appeals for the Seventh Circuit in the follow-
ing language (Electri-Flex Co. v. NLRB, 570 F.2d at
1333):
While it is true that the Act does not take from the
employer the right to enforce reasonable rules for
the conduct of the business and to take disciplinary
action against employees who either violate the
rules or are generally not suitable for efficient pro-
duction . . . it is equally true that the institution of
a new system of discipline is a significant change in
working conditions, and thus is one of the mandato-
ry subjects for bargaining under the provisions of
Section 8(d) of the Act, included within the phrase
"other terms and conditions of employment .. . ."
I therefore conclude that the Respondent, by unilater-
ally changing its rules governing absenteeism and tardi-
ness, and by instituting and enforcing a new discipline
system without first bargaining with the Union, thereby
violated Section 8(a)(5) and (1) of the Act.
The General Counsel and the Charging Party argue
that the Respondent violated the Act not only because of
its unilateral change of the rule, but also because it failed
or refused on request to give this information to the
Union. It is clear that this is factually correct, and the
Board with judicial approval has concluded that an em-
ployer's refusal to supply such information violates Sec-
tion 8(a)(5) and (1). East Coast Equipment Corp., 229
NLRB 825 (1977), enfd. sub nom. NLRB v. Steco Sales,
Inc., 98 LRRM 2438 (3d Cir. 1978).
The complaints allege only a unilateral change in the
rule, not a refusal to supply information concerning it.
However, the Board has previously ordered the Re-
spondent to supply "employment and wage data" re-
quested by the Union. Our Way, Inc., supra, 247 NLRB
1441, 1445. I conclude that the Respondent, by its failure
to inform the Union about its new policy on absenteeism,
on the latter's request, thereby violated the Board's prior
order. I also note that the issue of whether the Union
failed to supply information on the new rules is closely
related to the question of whether it in fact had new
rules, and that the former issue was thoroughly if not
vigorously litigated at the hearing. Accordingly, under
established law, I conclude that the Respondent also vio-
lated Section 8(a)(5) and (1) by refusing on request to
supply information relating to its employees' conditions
of employment.
c. The discharge of Larry Grier
As described above, Grier was discharged on Febru-
ary 10, 1981, pursuant to the Respondent's new policy on
discipline which was unlawfully instituted and enforced.
The Board has concluded with judicial approval that dis-
cipline imposed under such circumstances violates Sec-
tion 8(a)(5) and (1). Boland Marine Co., 225 NLRB 824
(1976), enfd. 562 F.2d 1259 (5th Cir. 1977),5- and I make
the same finding with respect to the discharge of Grier.
5s See also GasAa Tape. 241 NLRB 686 (1979).
d. The wage and benefit increase to Tucker employees
1. The complaint
The complaint in Case 10-CA-16809, as amended, al-
leges that the Respondent on November 14, 1980, unilat-
erally gave an increase in wages and fringe benefits to its
Tucker employees and thereafter, on December 4, 1980,
refused to honor the Union's request to bargain concern-
ing this matter, thus violating Section 8(a)(5) and (1).
The complaint was predicated on a charge filed on
March 24, 1981 (G.C. Exh. I(v)).
2. Factual summary
As described above, the Respondent gave annual raises
to employees performing the same job at all of its plants
based on a market survey. It continued these plans in
early 1980, but stopped planning for an increase to Eliza-
beth Street employees after the bargaining began in April
1980. In August, after commencement of the union cam-
paign at Tucker, the Company posted a notice stating
that Tucker employees would get a raise in November.
A raise in wages and an increase in fringe benefits were
given to the Tucker employees on November 14. At the
December 4 bargaining session, the Union demanded the
same increases retroactively for the Elizabeth Street em-
ployees, and agreed to waive the filing of an unfair labor
practice charge if the Respondent did so. The Company
refused, saying that such matters had to be negotiated.
3. The General Counsel's position
The General Counsel relies initially on an opinion of
the Court of Appeals for the District of Columbia Cir-
cuit which had previously adjudged an employer to be in
contempt, and where the employer thereafter filed a
motion to dissolve the court's order. NLRB v. Blevins
Popcorn Co., 659 F.2d 1173 (D.C. Cir. 1981).56 In the
bargaining which followed the initial contempt proceed-
ing, the employer withheld wage increases which had
customarily been given on a merit basis in December.
The Special Master, interpreting NLRB v. Katz, supra,
stated that "an employer could not unilaterally continue
pre-existing discretionary wage increases during the
course of negotiations." The court commented as fol-
lows:
In Katz the Supreme Court held that an employer
cannot unilaterally change conditions of employ-
ment during the course of negotiations with a
union; if the company decides to alter a preexisting
practice, it must give the union an opportunity to
bargain over the change. The Court applied this
principle to distinguish between automatic wage in-
creases to which the employer has already commit-
ted itself and wage increases that are "in no sense
automatic, but [are] informed by a large measure of
discretion." 369 U.S. at 746, 82 S. Ct. at 1113. The
employer would be required to grant the automatic
56 The court had previously enforced the Board's bargaining order.
Blevins Popcornr Co., 218 NLRB 689 (1975), enfd. 547 F.2d 706 (DC. Cir
1977), cert. denied 434 U.S. 854 (1977).
416
OUR WAY, INC.
wage increase unless it notified the union that it
wished to make a change in the existing conditions
of employment and gave the union an opportunity
to bargain over the change. However, the employer
could not unilaterally grant a nonautomatic, discre-
tionary wage increase since "[t]here simply is no
way in such a case for a union to know whether or
not there has been a substantial departure from past
practice... ." Id. Thus the union could "insist that
the company negotiate as to the procedures and cri-
teria for determining such increases." [659 F.2d at
1189.]
The court noted that although the timing of the increases
was apparently automatic, there was a discretionary ele-
ment in that the amount of the increases depended on
each employee's classification. The court stated that the
employer would be required to bargain over this discre-
tionary matter, and remanded the case to the Special
Master for further findings. The General Counsel, there-
fore, argues that the Respondent herein was obligated to
bargain with the Union over the size of its annual wage
and benefit increase at Tucker, and violated Section
8(a)(5) and (1) by refusing to do so.
The General Counsel additionally relies on a case
where the Board held with judicial approval that the em-
ployer had engaged in an unlawful refusal to bargain,
and where the employer's refusal to grant a retroactive
pay increase to employees represented by the union,
equivalent to an increase which had been granted to un-
represented employees, was violative of the Act. Clear-
water Finishing Co., 254 NLRB 1168 (1981), enfd. as
modified 670 F.2d 464 (4th Cir. 1982). The Board adopt-
ed the finding that the employer's "object in denying ret-
roactivity of pay equivalency to the employees in the
bargaining unit was to create dissatisfaction with the
Union on the part of those employees and thus further
drive a 'wedge' between them" (id., JD at pp. 12-13).
The General Counsel relates this to the refusal of the
Respondent herein to grant the same wage and benefit
increase to the Elizabeth Street employees which it
granted to those in the Tucker plant.
Finally, the General Counsel relies on Eastern Maine
Medical Center v. NLRB, 658 F.2d (Ist Cir. 1981), enfg.
253 NLRB 224 (1980). In that case the employer's
former practice had been to grant wage increases to its
employees based on annual wage surveys, which the
court found was an established condition of employment.
Following such a survey in 1977, the employer granted
increases to all employees except those in the bargaining
unit, and the Board affirmed the administrative law
judge's finding that the employer had thereby discrimi-
nated against the bargaining unit employees in violation
of Section 8(a)(3) and (1). The court rejected the em-
ployer's arguments that it had to freeze the wages of the
bargaining unit employees in order to maintain the status
quo and avoid a refusal-to-bargain charge, and that the
withheld increase was a legitimate economic weapon in
bargaining. Rather, the court concluded, the withheld in-
crease indicated the employer's intent to inflict a lasting
penalty on the bargaining unit employees .for their deci-
sion to organize.
4. Respondent's position
The Respondent argues initially that the complaint al-
legation should be dismissed because it is based on an
unfair labor practice committed more than 6 months
before the filing of the charge, and therefore was not
timely under Section 10(b) of the Act. The Respondent
contends that, on August 20, 1980, the Union had knowl-
edge of the wage increase more than 6 months before the
filing of the charge on March 24, 1981, and that the stat-
ute of limitations began to run on the former date. The
Respondent's argument is based on Ford's testimony
that, at the August 20 bargaining session, union negotia-
tor Heinz said that Bailey was "all shook up" over the
organizing campaign and had "announced a raise for ev-
erybody out there at Tucker." In support of its position,
the Company cites Catholic Medical Center of Brooklyn &
Queens, 236 NLRB 497 (1978), and Allied Products, 230
NLRB 858 (1977).57
In Catholic Medical Center, as pertinent, the employer
had previously suspended convention benefits for physi-
cians and dentists. On March 4, 1976, it approved reinsti-
tution of these benefits for all physicians and dentists
except those in the bargaining units. Later, on March 29,
it "announced to all concerned" the "implementation of
this policy" (236 NLRB at 449, 501). This announcement
was outside the 10(b) period. The Board, in agreement
with the administrative law judge, concluded that the an-
nouncement was the event that started the running of the
statute, and, accordingly, dismissed the allegation.
In Allied Products, as relevant, the company had an es-
tablished practice of wage reviews and merit increases
on the employee's anniversary date. One employee noti-
fied the union that she had not received her merit in-
crease. This notice was outside the 10(b) period. Later,
at a bargaining session, the union was told there would
be no wage reviews, and other employees thereafter
failed to receive their increases within the 6-month
period preceding the filing of the charge. The date of the
bargaining session was within the 6-month period of limi-
tation. In its initial decision, the Board concluded that
the suspension of the merit system was unlawful as it af-
fected employees who had been denied raises during the
6-month period.5 8 On appeal, the court of appeals rea-
57 R. Br., pp. 94-96.
58 Former Member Kennedy, dissenting, concluded that Sec. 10(b) ap-
plied. He argued that the majority opinion was based on the theory in
General Motors Acceptance Corp., 196 NLRB 137 (1972), enfd. 476 F.2d
850 (Ist Cir. 1973), that the section did not bar the complaint because
employees were denied wage increases during the statutory period. He
also noted his and former Chairman Miller's dissent from this opinion and
their rejection of the concept that there was a continuing violation each
time an employee's wage increase was withheld. The dissenting Members
relied on the Board's decision in Bonwit Teller, Inc., 96 NLRB 608 (1951),
enf. denied on other grounds 197 F.2d 640 (2d Cir. 1952), cert. denied
345 U.S 905 (1953), that an employer's decision to freeze merit wage in-
creases because of the pendency of a representation petition starts the
running of the statute Member Kennedy pointed out that, although the
court of appeals in General Motors Acceptance rejected the 10(b) defense,
"it did so upon the ground that in the aggregate a number of acts com-
mitted by the respondent within the limitation period indicated that the
respondent 'was attempting to discredit the union by shifting full respon-
sibility to it for the employees' loss of merit increases."' The dissenting
opinion also notes the court's comment that General Motors Acceptance
Continued
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
soned that the first information about one employee's
denial of an increase was not adequate notice that the
company had suspended its established practice of wage
reviews, and that the charge was therefore timely filed.
NLRB v. Allied Products, 629 F.2d (6th Cir. 1977). On
remand, the Board concurred, noting the court's agree-
ment with the rule that the 6-month limitation period
does not begin to run until the injured party has become,
or should have become, aware of the respondent's un-
lawful action. Allied Products, ibid, 230 NLRB 858 at
859.
The Respondent further argues substantively that the
wage increases were completely discretionary both in
timing and amount, and that there was therefore no past
practice which it was obligated to continue with respect
to the Elizabeth Street employees. The Respondent cites
Mosher Steel, 220 NLRB 336 (1975), which, it says, pre-
sents "facts almost identical to those here." 59 In that
case the employer had previously granted various types
of individual increases and general increases, involving
areas of discretion, and continued to do so during negoti-
ations with the Union, over the latter's protest. The em-
ployer argued that it was merely preserving the status
quo, but the administrative law judge, relying on NLRB
v. Katz, supra, concluded that both the individual and
general increases constituted unilateral changes in em-
ployment conditions violative of Section 8(a)(5) and (1).
The Board concurred, noting that some of the employ-
er's individual raises took place during a brief period of
time, were "massive," and departed from past practice.
The Board cited elements from the record supporting a
conclusion that the employer's policy was discretionary
(220 NLRB at 338), and the Respondent herein cites this
passage, apparently to support its argument that its own
wage policy was discretionary. The Company concludes
that it could not lawfully have given an increase to its
represented Elizabeth Street employees without commit-
ting "a classic Section 8(a)(5) violation."
The Company then argues that its determination to
give the Tucker employees a raise was a lawful decision,
made in advance of the Board's denial of the request for
review of the Regional Director's unit clarification deci-
sion. "Because the Tucker increase was approved, al-
though tentatively in amount, prior to [the] time the
Union began organizational efforts in August 1980, the
Company could not have canceled its plans for a Tucker
raise without risking the finding of an unfair labor prac-
tice once the organizational campaign began," the Re-
spondent argues, citing Sinclair & Rusch, Inc., 185 NLRB
25 (1970), and NLRB v. Hendel Mfg. Co., 483 F.2d 350
(2d Cir. 1973).
The Respondent thus concludes that the Tucker in-
crease was lawful, because it was discretionary, whereas
an Elizabeth Street increase was not required because no
past practice has been shown. The latter would have
was distinguishable from fonwif Teller, "where the employer committed
uo unlavwful conduct during the limitations period . . . ." Since Member
Kennedy reasoned that the facts in Allied Products were more like those
in Ronwsit Teller than like those in General Motors Acceptance, he would
have found that Sec I(Xb) barred consideration of the complaint allega-
tion. .lied Producls, 218 Ni1RB 1246. 1247-48 (1975)
,9 R Br, p. 98
been unlawful, because Elizabeth Street employees were
represented by the Union.
The Company contends that the Union did not insist
on bargaining for the Tucker unit "prior to September
25, 1981."6o The Respondent's conduct was not like that
of the employer in Clearwater Finishing Co., supra, be-
cause it did not refuse to give a retroactive increase to
the represented employees, but, instead, offered to bar-
gain over the matter. Its decision to grant the increase at
Tucker was made prior to the filing of the unit clarifica-
tion petition, and the announcement of the increase (in
August) was made before the Company had knowledge
that any union claimed to represent the Tucker employ-
ees. After September 25, however, the Company did not
refuse to bargain over an equivalent retroactive wage in-
crease for the Elizabeth Street employees. No discrimina-
tory motivation has been established in connection with
the Tucker increase and no violation of Section 8(a)(3) in
this connection has been alleged.
5. Legal conclusions
The Respondent's argument is based on a distortion of
the facts. Thus, the Company's contention, that it had no
knowledge prior to September 25, 1980, that any union
claimed to represent the Tucker employees, flies in the
face of the record, which shows that the Union demand-
ed bargaining over the Tucker employees from the be-
ginning of the bargaining sessions in early 1980, and that
the Company refused.
The Respondent's posted notice of the forthcoming
raise at Tucker was made in August, after the Respond-
ent had learned of the union campaign and in the context
of unfair labor practices including the promulgation of
an unlawful no-solicitation rule and the discriminatory
discharge of union activist Betty J. Skidmore. This
timing and context suggest that the posting was intended
to demonstrate to Tucker employees the superseniority
of their position over the represented employees at Eliza-
beth Street and thus to denigrate the Union. The posting,
however, is not alleged to be unlawful and I make no
finding concerning it.
What is alleged in the complaint is that the Respond-
ent unilaterally gave an increase to its Tucker employees
on November 14 and refused to bargain concerning this
on December 4. The Respondent concedes that the
Union demanded bargaining over the Tucker unit on
September 25. The Company's obligation to bargain over
Tucker, therefore, arose on that date at the very latest.
"It is well settled that where an employer establishes a
new operation which constitutes an accretion to an exist-
ing bargaining unit, the employer's refusal to include the
new operation in the bargaining unit upon the bargaining
representative's request is a violation of Section 8(a)(5)
and (1) of the Act." Universal Security Instruments, 250
NLRB 661, 670 (1980), enfd. as modified 649 F.2d 247
(4th Cir. 1981).
The Respondent nonetheless proceeded to implement
the wage and benefit increase after its bargaining obliga-
tion began. Its argument that it was required to do so be-
6o Id. at p. 101.
418
OUR WAY, INC.
cause of the August announcement of the raise is incor-
rect, and its reliance on Sinclair & Rush and Hendel,
supra, is misplaced, as those cases contain only inapposite
dicta on the issue herein. On the contrary, the Respond-
ent was obligated to bargain with the Union over the
Tucker raise and over the amount. The Company con-
cedes that the amount was "tentative" at the time of the
August announcement. As the court stated in Blevins
Popcorn, supra, this was a discretionary issue as to which
the Respondent had a bargaining obligation. According-
ly, its granting of the raise without satisfying that obliga-
tion constituted a violation of Section 8(a)(5) and (I), and
so I find.
The record is also clear that union negotiator Heinz
demanded bargaining over the Tucker employees at the
December 4 bargaining session, noting that the Regional
Director's decision had included them. The company ne-
gotiator refused, saying that this was not the Board's de-
cision. Accordingly, as alleged in the complaint, the Re-
spondent again violated Section 8(a)(5) and (1) of the
Act, and I so find.
The union negotiator demanded an equivalent retroac-
tive raise for the Elizabeth Street employees, and, after
hearing the Company's professed fears of an unfair labor
practice charge, agreed to waive the filing of same. The
company representative asked whether the granting of
such benefits would result in a contract. This question
was not an offer, and, if such, and if accepted, would
have required the Union to accept a disadvantageous
result on many other issues which separated the parties.
Accordingly, the Union declined. The company repre-
sentative then said that the issue of a retroactive equiva-
lent increase for the Elizabeth Street employees had to
be the result of negotiation. The Respondent argues that
this was not a refusal to bargain over the issue. Howev-
er, it clearly constituted a refusal to grant the request,
and again tended to denigrate the Union in the eyes of
the Elizabeth Street employees. The Tucker increase had
already been granted and the disaffection which it pro-
duced at Elizabeth Street is graphically portrayed in the
record.
The Respondent's conduct, therefore, falls within the
rationale of Clearwater Finishing Co., and Eastern Maine
Medical Center, supra. Although the failure to grant an
equivalent raise to the Elizabeth Street employees was
not alleged as a separate violation, it is closely related to
the complaint allegation and was thoroughly litigated.
Accordingly, I find that by failure to grant this request
the Respondent additionally violated Section 8(a)(5) and
(I) of the Act.6 '
The Respondent's 10(b) defense is similarly without
merit. The alleged unfair labor practice was not the an-
nouncement in August 1980 of a forthcoming raise at
Tucker. Rather, it was the unilateral implementation of
the raise on November 14, 1980, and the refusal to
extend it to Tucker on December 4. These events obvi-
ously took place less than 6 months prior to the filing of
the charge on March 24, 1981.
Assuming arguendo the truth of Ford's testimony that
Heinz said on August 20 that Bailey had announced a
6' I make no finding on whether this conduct also violated Sec.
8(a)(3).
raise at Tucker, Heinz had no way of knowing that the
Company would refuse to bargain over the matter in
futuro. According to the Company itself, no bargaining
demand was made until September 25, and its August an-
nouncement of the raise was perfectly lawful. If so, then
how did Heinz' knowledge of it constitute knowledge of
an unlawful act, with or without the period of limitation?
I conclude that the Union's knowledge of the August
announcement-if indeed it did know-at most constitut-
ed ambiguous information, like the first notice of one em-
ployee's denial of a merit raise in Allied Products. I fur-
ther note that the Company engaged in other conduct
within the limitation period which tended to discredit
the Union, and I, therefore, reject the 10(b) defense for
the additional reasons set forth in the court's decision in
General Motors Acceptance Corp., supra.
In accordance with my findings above, I make the fol-
lowing
CONCL USIONS OF LAW
i. Our Way, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Firemen and Oilers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By engaging in the following conduct, the Respond-
ent committed unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act:
(a) Maintaining since March 6, 1980, a written rule
prohibiting soliciting, collecting, or selling during the
working time of the soliciting employee or the working
time of the employee being solicited, without clarifica-
tion that such activities are permitted in the workday
during periods when employees may legitimately engage
in protected activities, such as breaks and lunch periods.
(b) On or about August 22, 1980, orally promulgating
a new rule and/or modifying a written rule so as to pro-
hibit any solicitation whatever, any solicitation on com-
pany property, and/or any solicitation in another em-
ployee's work area during working hours.
(c) On or about July 13, 1981, promulgating a written
rule prohibiting solicitation or distribution during work-
ing time, even when the soliciting employee is not on
working time so long as the solicited employee is on
such time, without clarification that such activities are
permitted in the workday during periods when employ-
ees may legitimately engage in protected activities, such
as breaks and lunch periods.
(d) On or about August 22, 1980, telling employees
that anyone violating an oral rule against solicitation
(which was unlawful) would be fired.
(e) On or about August 22, 1980, telling employees
that the plant would be shut down before the Respond-
ent would let the Union come in.
(f) On or about August 22, 1980, telling employees
that the Union could not compel the Respondent to give
anything to the employees.
(g) On or about August 22, 1980, telling employees
that there would be no union at Tucker.
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) On or about August 29, 1980, asking an employee
whether she had been handing out union cards and
whether she had been doing so during lunch periods.
(i) On or about April 28, 1981, telling employees that
the Respondent would fire anybody who engaged in a
strike.
(j) On or about May 11, 1981, and again on May 12,
asking an employee whether another employee made him
sign a union card, and soliciting such employee to make
a false accusation of coercion by another employee in
connection with the signing of union cards.
4. By discharging Betty J. Skidmore on August 29,
1980, because of her union activities, the Respondent
thereby violated Section 8(a)(3) and (1) of the Act.
5. Pursuant to Board certification and clarification
thereof, the following unit is now, and has been at all
times material herein, an appropriate unit for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All production and maintenance employees, includ-
ing truck-drivers and helpers, employed by Re-
spondent at its Bernina Street, Krog Street and
Elizabeth Street, Atlanta, Georgia and Tucker,
Georgia locations, but excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
6. On or about September 25, 1980, and thereafter, the
aforesaid Union requested that the Respondent bargain
with it as the exclusive representative of the employees
in the unit described above with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment.
7. By engaging in the following acts and conduct, the
Respondent violated Section 8(a)(5) and (1) of the Act:
(a) On or about November 14, 1980, unilaterally' grant-
ing an increase in wages and benefits to its Tucker em-
ployees, without consultation with the Union.
(b) On or about September 25, 1980, and thereafter, re-
fusing to bargain with the Union as the exclusive repre-
sentative of the employees in the unit described above.
(c) On or about December 4, 1980, and thereafter, re-
fusing to bargain with the Union over the wage and ben-
efit increase described in paragraph 7(a), above.
(d) On or about December 4, 1980, and thereafter, re-
fusing to grant an increase in wages and benefits to its
other employees in the unit described above, equivalent
to the increase described in paragraph 7(a) above, retro-
active to the date of such increase.
(e) On or about June 1, 1980 (effective July 1), chang-
ing the Respondent's rules on discipline of employees for
absenteeism and tardiness, without notice to or consulta-
tion with the Union.
(f) During bargaining sessions with the Union in 1980,
failing and refusing on request to give the Union infor-
mation concerning the change in rules described in para-
graph 7(e), above.
(g) On February 10, 1981, discharging employee Larry
Grier pursuant to the unlawfully changed rule described
above in paragraph 7(e), and reemploy him without
backpay on May 6, 1981.
8. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
9. The Respondent has not violated the Act except as
specified herein.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it be ordered to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pur-
poses of the Act. In accordance with Board practice,
such order shall not be construed as requiring the Re-
spondent to withdraw any wage or benefit increase pre-
viously granted to employees.
It having been found that the Respondent unlawfully
discharged Betty K. Skidmore on August 29, 1980, it is
recommended that the Respondent be ordered to offer
her immediate and full reinstatement to her former posi-
tion or, if such position no longer exists, to a substantial-
ly equivalent position without prejudice to her seniority
or other rights and privileges, dismissing if necessary any
employee hired to fill said position, and to make her
whole for any loss of earnings she may have suffered by
reason of the Respondent's unlawful conduct, by paying
to her a sum of money equal to the amount she would
have earned from the date of her unlawful discharge to
the date of an offer of reinstatement, less net earnings
during such period, with interest thereon to be computed
on a quarterly basis in the manner established by the
Board in F W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977).62
It having been found that the Respondent unlawfully
discharged Larry Grier on February 10, 1981, and reem-
ployed him without backpay on May 6, 1981, it is rec-
ommended that the Respondent be ordered to notify
Grier that such reemployment is without prejudice to his
seniority or other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by
reason of the Respondent's unlawful conduct, by paying
to him a sum of money equal to the amount he would
have earned from the date of his unlawful discharge to
the date of his reemployment, less net earnings during
such period, with interest thereon to be computed on a
quarterly basis in the manner established by the Board in
F. W Woolworth Co., and Florida Steel Corp., supra.63
It having been found that the Respondent has refused
to bargain with the Union as the collective-bargaining
representative of the employees in the unit described
above, and has also refused or failed to bargain over an
increase in wages and benefits for the Respondent's em-
ployees at its Tucker, Georgia plant, it is recommended
that the Respondent be ordered to bargain with the
Union over these matters, and, if any agreement or
agreements are reached, embody them in a signed, writ-
ten document or documents. It also having been found
that the Respondent has unlawfully changed its rules on
employee discipline for absenteeism and tardiness with-
62 See generally Isis Plumbing Co.. 138 NLRB 716 (1962).
63 Ibid See Boland Co.. and Gaska Tape, supra
420
OUR WAY, INC.
out bargaining with the Union, and has refused on re-
quest to supply the Union with information concerning
said rules and changes, it is recommended that the Re-
spondent be ordered, on request, to bargain with the
Union concerning any such changes, and to supply the
Union with information concerning the rules and
changes in them.
It has also been found that the Respondent violated
the Act by refusing to grant to its represented employees
a retroactive increase in wages and benefits equivalent to
that which it granted to its unrepresented employees. In
Clearwater Finishing Co., supra, the Board approved a
recommended order that the employer therein be re-
quired to give its represented employees a retroactive
raise, with interest, equivalent to that which it had given
to the unrepresented employees. The Court of Appeals
for the Fourth Circuit disagreed, and refused to enforce
this part of the Board's remedial order, with the follow-
ing language:
Finally, the Board's order that the Company
grant the proposed wage increase retroactively is
beyond the scope of its authority as set out in H. K.
Porter Co. v. NLRB, 397 U.S. 99 . . . (1970). As re-
cently recognized by this court in Procter and
Gamble Co. v. NLRB, 658 F.2d 968, 988 (4th Cir.
1981), H. K. Porter Co. stands for the proposition
that the Board has no authority to order agreement
on mandatory subjects of bargaining. It is more than
clear here, that whether the proposed wage increase
would have retroactive application was an element
of the collective bargaining agreement being negoti-
ated at the time of the violations. Indeed, at one
point during negotiations retroactivity was the only
term upon which agreement could not be reached.
Thus, the Board had no authority to order agree-
ment on that term.
The Board cites several cases which purport to
limit the application of the rule in H. K. Porter to
cases involving violations of § 8(a)(5). However, the
cited cases do not involve a Board order which re-
quires agreement on a term about which negotia-
tions had taken place. We think that the rule of H.
K. Porter applies equally to orders requiring agree-
ment on subjects of bargaining in cases arising
under § 8(a)(l) and 8(a)(5). [Clearwater Finishing Co.
v. NLRB, supra, 670 F.2d at 468.]
However, in Eastern Maine Medical Center, supra, the
employer therein also gave a wage increase to unrepre-
sented employees, and this also became "an element of
the collective bargaining agreement being negotiated
. ." (Clearwater Finishing Co., id). See 253 NLRB 224
at 254. The Board affirmed a finding that this constituted
violations of Section 8(a)(3) and (5) and, as in Clearwater,
approved an order requiring the employer "to make ap-
plicable to such [represented] employees the increased
wages and benefits generally granted by Respondent to
its unrepresented employees . . . together with interest"
(id., 253 NLRB at 250).
The Court of Appeals for the First Circuit enforced
this portion of the Board's remedial order together with
the remainder thereof, in part with the following lan-
guage:
EMMC does not dispute that but for the pres-
ence of the union it would have granted the nurses
both the 1976 and 1977 pay raises, yet at no time
through the end of the negotiations was it willing to
offer these sums to the union. Not only did the hos-
pital fail to offer the pay raises retroactively, a prac-
tice we held to violate § 8(a)(3) when coupled with
bad faith bargaining . . . but it failed to offer, on
any terms, more than a fraction of the wages lost by
the nurses as a result of their decision to organize.
Thus, while suspending any increase until the close
of negotiations, and thereby causing wages for some
registered nurses to fall behind those of graduate
nurses, EMMC also proposed to deny the greater
part of the increase permanently to bargaining unit
employees. Magnifying this effect, beginning after
the election and continuing through bargaining,
EMMC announced and implemented a cornucopia
of fringe benefits for non-unit employees. ...
The ALJ justifiably concluded that this conduct
belied a desire merely to bring pressure on the
union to make concessions and evinced an intent to
exact a lasting penalty upon the nurses for their de-
cision to unionize .... [Eastern Maine Medical
Center v. NLRB, supra, 658 F.2d 1 at 9.]
In Mead Corp., 256 NLRB 686 (1981), the employer
violated Section 8(a)(5) and (1) by withdrawing a mid-
term offer during negotiations at a time when it knew
that acceptance was imminent. The Board stated that the
best way to achieve the status quo ante was to require
the employer to reinstate the offer for a specified period
of time. The Board met the argument that such a remedy
was precluded by the rule in H. K. Porter by pointing out
that the employer was merely being required to reinstate
a proposal which it had "formulated and voluntarily of-
fered," and that it was not being required to abide by a
proposal "consistently opposed by it" (id.). It may be
noted that the status quo ante can never be achieved in
cases like Clearwater Finishing and Eastern Maine Medi-
cal Center by a general bargaining order, because, as lu-
cidly explained by the court in the latter case, the repre-
sented employees will never catch up and achieve parity
with the unrepresented group.
These cases do not present the same problem of statu-
tory construction which the Supreme Court faced in H.
K. Porter. In the Board's original decision in that case,
the 8(a)(1) finding was derivative in nature, and was
predicated on the 8(a)(5) violation. H. K. Porter Co., 153
NLRB 1370 (1965). The extended litigation which fol-
lowed this decision involved the Board's authority to
remedy a violation of Section 8(a)(5). By contrast, in
Eastern Maine Medical Center and Clearwater Finishing
Co., the Board, unlike its original H. K. Porter decision,
specifically found independent violations of sections of
the Act other than Section 8(a)(5).
The employers in these latter cases were merely re-
quired by the Board to grant to their represented em-
ployees the same wages and benefits which they had
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"voluntarily offered" to their unrepresented employees,
and which they had unlawfully withheld from the
former. Similarly, no one compelled the Respondent
herein to grant an increase to its Tucker employees.
Indeed, the Company insists that this action was purely
"discretionary." Once having taken this voluntary step,
however, the Respondent incurred an obligation to pre-
vent an unlawful effect of its freely undertaken action,
and this obligation could only have been satisfied by
giving its represented employees an equivalent grant.
It is a misreading of Section 8(d) to conclude that the
employer's freedom to contract guaranteed by that sec-
tion-which explains an unlawful refusal to bargain
within the meaning of Section 8(a)(5)-may be used as a
defense to alleged violations of other sections of the Act.
The Supreme Court itself stated in H. K. Porter that the
"parties' freedom of contract is not absolute," and that
"[v]arious practices in enforcing the Act may to some
extent limit freedom to contract as the parties desire"
(supra, 397 U.S. 99). The clarification in Section 8(d) of
an employer's obligation to bargain and the Supreme
Court's explanation in H. K. Porter of an employer's
qualified freedom to contract in the context of an alleged
violation of Section 8(a)(5) do not include a license to
attack the rights of employees protected in Section 7 and
other sections of the Act.
One circuit court decision and several Board cases
have held that a retroactive, equivalent grant of wages
and benefits is the appropriate remedy in circumstances
such as those presented by the instant case. I am bound
by Board law and, accordingly, recommend that the Re-
spondent be required to grant each of its Elizabeth Street
employees an increase in wages and benefits equivalent
to the increase which the Respondent granted to its
Tucker employees on November 14, 1980, retroactive to
the actual date of such increase or the date of such em-
ployee's date of employment, whichever is later, with in-
terest thereon computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Co.
and Florida Steel Corp., supra.6 4 Such increase shall not
satisfy the Respondent's additional obligation to bargain
with the Union concerning such matters, but rather shall
take place immediately, to be followed by performance,
on request, of the Respondent's obligation to bargain.
It will also be recommended that the Respondent be
required to post appropriate notices, and to rescind the
unlawful no-solicitation rules, with notice thereof to each
employee.
The Union requests the extraordinary remedy of an
award of organizational and litigation expenses on the
ground that the Respondent's defense is "part and parcel
of an attempt to seek review of the previous unit clarifi-
cation decision," and that this defense is "patently frivo-
lous and clearly meritless."
With respect to organizational expenses the Board has
required that there be some nexus between the allegedly
extraordinary expenses and the employer's unlawful con-
duct. Tiidee Products, 194 NLRB 1234, 1236 (1972). Al-
though it is true that the Company refused at the outset
of the 1980 negotiations to bargain over the Tucker em-
64 See generally Isis Plumbing Co., supra.
ployees, the certification at the time did not include
those employees. It is also true that the Respondent
again refused to bargain concerning the Tucker employ-
ees after the unit had been clarified to include them.
However, the organizational campaign, whose expenses
the Union seeks to recover, began in August 1980. At
that time, the only unlawful conduct in which the Re-
spondent had engaged was maintenance of a no-solicita-
tion rule which I have herein found to be unlawful by
retroactive application of T.R. W. Bearings, supra, and the
refusal to supply all the work rules. All the rest of the
Respondent's unlawful conduct took place after the be-
ginning of the union campaign. That campaign was not
precipitated by the Respondent's preceding unlawful
conduct, but rather by its refusal to bargain over the
Tucker employees. The complaints do not allege a refus-
al to bargain, however, until after the campaign. Under
these circumstances, I find no causal link between the
campaign expenses and the Respondent's unlawful con-
duct.
In Heck's, Inc., 215 NLRB 765 (1974), the Board re-
stated its policy of granting extraordinary relief of the
kind here sought in cases where the defense is "frivo-
lous," and of denying it where the issues are "debatable."
More recently, the Board with judicial approval has ap-
proved another rationale for such relief in cases of sus-
tained and serious unfair labor practices and an employ-
er's "policy of intransigence whereby court-enforced
orders of the Board have been flouted and contempt de-
crees reduced to a mockery." J. P. Stevens & Co., 244
NLRB 407, 457-459 (1979), enfd. 668 F.2d 767 (4th Cir.
1982).
It is true, as I have observed, that the Respondent's re-
fusal to give relevant information to the Union constitut-
ed a refusal to honor a prior Board order. It is also true
that the Respondent's unlawful conduct has been aggra-
vated and pervasive. However, there has been no flout-
ing of a court-enforced Board order or a contempt decree,
as in the J. P. Stevens cases, and the history of this Re-
spondent's unlawful conduct has not been as extended
and persistent. Under these circumstances, and taking
into consideration the absence of any connecting link be-
tween the Union's campaign expenses and the Compa-
ny's unlawful conduct, I conclude that a grant of ex-
traordinary relief would not be in accord with estab-
lished Board policy. It is obvious, however, that another
broad order is warranted.
On these findings of fact and conclusions of law and
on the entire record, 65 I recommend the following
6" The Respondent's motion to correct record is hereby granted,
except for sec. 49 thereof, which asserts that Ford testified to the "25th"
as the date of mailing instead of the transcript record of the "24th."
There is no factual basis for this change which, moreover, would not be
in the Respondent's favor. Sec. 20 of the Respondent's motion is correct-
ed to indicate p. "756" instead of p. "765." With these corrections, the
Respondent's motion in relevant part is made a part hereof as "Appendix
B." [Deleted from publication.] The General Counsel's opposition to the
first paragraph of sec. 26 of the Respondent's motion is rejected, since
the change is consistent with immediately succeeding portions of the
transcript, and with Askham's testimony, which I have discredited, that
McGaughey's statements to the company officials were not consistent
with the police report.
Continued
422
OUR WAY, INC.
ORDER 66
The Respondent, Our Way, Inc., Atlanta, Georgia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing, maintaining, or enforcing written rules pro-
hibiting union solicitation, or distribution of union mate-
rials, during working time, without affirmatively and
clearly specifying the times that employees may lawfully
engage in such activities.
(b) Promulgating, maintaining, or enforcing oral rules
prohibiting any solicitation whatsoever, any solicitation
on company property, any solicitation in another em-
ployee's work area during working hours, or any solici-
tation during worktime, without affirmatively and clearly
specifying the times that employees may lawfully engage
in such activities.
(c) Telling employees that anyone violating a rule
against solicitation which is not affirmatively clarified as
indicated above in subparagraphs l(a) and I(b), or
anyone engaging in a strike, will be fired.
(d) Telling employees that the plant will be shut down
before the Respondent will let the Union come in.
(e) Telling employees that the Union cannot compel
the Respondent to give anything to employees.
(f) Telling employees that there will be no union at
Tucker or at any other of the Respondent's plants.
(g) Coercively interrogating employees concerning
their union activities.
(h) Asking employees whether other employees made
them sign union cards, or soliciting false statements that
other employees did so.
(i) Discouraging membership in the International
Brotherhood of Firemen and Oilers, AFL-CIO, or any
other labor organization, by discharging employees be-
cause of their union activities, or by discriminating
against them in any other manner with respect to their
hire, tenure, or any terms or condition of employment.
0() Refusing to bargain collectively concerning rates of
pay, hours, and other terms and conditions of employ-
ment with the aforenamed Union as the exclusive bar-
gaining representative of its employees in the following
appropriate unit:
All production and maintenance employees, includ-
ing truck-drivers and helpers, employed by Re-
spondent at its Bernina Street, Krog Street and
Elizabeth Street, Atlanta, Georgia and Tucker,
Georgia locations, but excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
(k) Unilaterally granting increases in wages or benefits
to its employees without consultation with the afore-
named Union. Nothing herein shall be construed as re-
The General Counsel's motion to strike the word "queer" on I. I of p.
168 of the transcript, and to substitute the word "quitter" in lieu thereof
is granted, as such change reflects the actual testimony of the witness. All
other motions are denied.
66 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
quiring the Respondent to withdraw any wage or benefit
increase previously granted to employees.
(I) Refusing to bargain with the aforenamed Union
concerning wage or benefit increases given to its em-
ployees.
(m) Refusing to grant retroactive equivalent raises in
wages and benefits to employees at one of its plants
which it had previously granted to employees at another
plant.
(n) Unilaterally changing employee rules concerning
working conditions without consultation with the afore-
named Union.
(o) Failing or refusing to give information about em-
ployee rules concerning working conditions, or changes
therein, to the aforenamed Union.
(p) Discharging or otherwise disciplining employees
for violation of unilaterally changed work rules, or such
rules as to which the Respondent has failed to supply the
aforenamed Union with information thereof.
(q) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Publish a written rescission of its rules described
above in subsections 3(a), (b), and (c) of the section of
this Decision entitled "Conclusions of Law," and mail a
copy of such rescission to each of its employees at his or
her last known address.
(b) Offer Betty J. Skidmore immediate and full rein-
statement to her former position or, if such position no
longer exists, to substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
discharging if necessary any employee hired to replace
her, and make her whole for any loss of earnings she
may have suffered by reason of the Respondent's dis-
crimination against her, in the manner described in the
section of this Decision entitled "The Remedy."
(c) Notify Larry Grier in writing that he is entitled to
the same seniority and other rights and privileges which
he would have had absent the Respondent's unlawful dis-
charge of him on February 10, 1981, and make him
whole for any loss of earnings he may have suffered be-
cause of said unlawful discharge in the manner described
in the section of this Decision entitled "The Remedy."
(d) Upon request, recognize and bargain in good faith
with the above-named Union as the exclusive representa-
tive of all the employees in the aforesaid appropriate
unit, concerning wages, hours, and working rules, includ-
ing the rules affecting levels of discipline for absenteeism
and tardiness, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a written signed agremeent.
(e) Upon request, supply the aforenamed Union with
information concerning work rules affecting employees
in the aforesaid appropriate unit.
(f) Immediately grant to each of its employees at its
Elizabeth Street, Atlanta, Georgia location an increase in
wages and benefits equivalent to the increase which it
granted to its employees at its Tucker, Georgia location
about November 14, 1980, retroactive to the actual date
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such increase, or to an individual employee's date of
employment, whichever is later, in the manner described
in the section of this Decision entitled "The Remedy."
Such immediate increase shall be in addition to the Re-
spondent's obligation to bargain concerning same with
the aforenamed Union described above.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(h) Post at its locations in Atlanta and Tucker, Geor-
gia, copies of the attached notice marked "Appendix
A." 8 7 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by
the Respondent'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 are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaints be di-
missed insofar as they allege violations of the Act not
specifically found herein.
67 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice. We intend to carry out its provisions as
follows.
The National Lbaor Relations Act gives all em-
ployees these rights:
To form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything to interfere with these
rights.
WE WILL NOT discharge or otherwise discriminate
against employees because of membership in and/or ac-
tivities on behalf of International Brotherhood of Fire-
men and Oilers, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT refuse to recognize and, upon request,
bargain with the aforenamed Union as the exclusive rep-
resentative of our employees in the following appropriate
bargaining unit:
All production and maintenance employees, includ-
ing truck-drivers and helpers, employed by Re-
spondent at our Bernina Street Krog, Street and
Elizabeth Street, Atlanta, Georgia and Tucker,
Georgia locations, but excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
We realize that we have closed our Bernina and Krog
Street locations, and that there are no employees there,
but we repeat the description of the unit given above be-
cause it is the certified unit, and includes our Tucker em-
ployees, which addition to the certified unit we shall
honor.
WE WILL NOT unilaterally grant increases in wages or
benefits to any of our employees in the bargaining unit
described above without consulting with the aforenamed
Union. WE WILL NOT, however, withdraw any such in-
creases which we have previously granted.
WE WILL NOT unilaterally grant increases in wages or
benefits to some of our employees in the unit described
above and deny them to others.
WE WILL NOT unilaterally change employee work
rules without consulting with the aforenamed Union.
WE WILL NOT refuse to give information concerning
employee work rules to the Union.
WE WILL NOT discharge or otherwise discipline em-
ployees because of any work rules which we have unilat-
erally changed without consulting the Union, or any
work rule changes concerning which we have refused to
give the Union information.
WE WILL NOT issue rules prohibiting solicitation or
distribution without clearly telling employees when they
may lawfully engage in such activities.
WE WILL NOT tell employees that they will be fired
for violating any rules on solicitation and distribution
which fail to tell them clearly when they may lawfully
engage in such activities, and WE WILL NOT tell employ-
ees they will be fired for engaging in a strike.
WE WILL NOT tell employees that the plant will be
shut down before we will let the aforenamed union come
in.
WE WILL NOT tell employees that the Union cannot
compel us to give anything to our employees.
WE WILL NOT tell employees that there will be "no
union" at our Tucker location, or at any other of our lo-
cations.
WE WILL NOT coercively interrogate our employees
concerning their union activities or sympathies.
WE WILL NOT ask employees whether other employ-
ees made them sign union cards, and WE WILL NOT at-
tempt to get employees to sign false statements that other
424
OUR WAY, INC.
employees made them sign union cards, or to sign any
other false statement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL publish a rescission of work rule 7 concern-
ing solicitation, the rule on "Solicitation/Distribution"
printed on page 18 of our "Employee Handbook," and
any and all oral rules concerning solicitation or distribu-
tion which we have promulgated, and WE WILL mail a
copy of such rescission to each of our employees in the
unit described above.
WE WILL offer Betty J. Skidmore full and immediate
reinstatement to her former position or, if any such job
no longer exists, to a substantially equivalent position,
without prejudice to her seniority and other rights and
privileges, discharging if necessary any employee hired
to replace her, and WE WILL make her whole for any
loss of earnings she may have suffered because we dis-
charged her, by paying her backpay with interest.
WE WILL notify Larry Grier in writing that he is enti-
tled to the same seniority and other rights and privileges
which he would have had if we had not unlawfully dis-
charged him on February 10, 1981, and WE WILL make
him whole for any loss of earnings he may have suffered
because of his discharge, by paying him backpay with in-
terest.
WE WILL immediately grant to our Elizabeth Street
employees an increase in wages and benefits equivalent
to the increases which we previously granted to our
Tucker employees, retroactively to the date of the
Tucker increase, or to an employee's beginning date of
employment, whichever is later, with interest.
WE WILL, on request, bargain collectively with the
aforenamed Union as the exclusive representative of the
employees in the bargaining unit described above with
respect to rates of pay, hours of employment, and other
terms and conditions of employment, and, if an under-
standing is reached, WE WILL embody such understand-
ing in a signed written agreement.
OUR WAY, INC.
425