Sani-Serv

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1336 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sani-Serv, Division of Catalox Corporation and
Walter G. Sutton and Kenneth Britt and John
Collins and Daniel E. Shreve. Cases 25-CA-
10501, 25-CA-10501-2, 25-CA-10834, and 25-
CA-10834-2
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On February 4, 1980, Administrative Law Judge
Henry L. Jalette issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed cross-exceptions and a supporting
memorandum, and an answering brief to the Gen-
eral Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge 3 and to adopt his recommended Order.
I Respondent excepts, inter alia, to the Administrative Law Judge's
finding that Respondent's work rules 8, 13, ad 14 are unlawful. Respon-
dent contends, inter alia, that its rescission of these rules precludes a find-
ing of a violation of Sec 8(a)(1) of the Act, citing Bellinger Shipyards,
Inc., 227 NLRB 620 (1976). However. we agree with the Administrative
Law Judge, for the reasons he set out, that Bellinger is distinguishable
from the instant case, because in the instant case Respondent did not ef-
fectively notify the employees of its rescission of these unlawful rules.
Moreover, even if the employees had been effectively notified of the
rescission of rules 8, 13, and 14, the effect of the rescission of rule 14 was
completely negated by Respondent's subsequent promulgation of new
rule 12, which, as found herein, is cast in the same unlawful terms as
former rule 14 In these circumstances, and inasmuch as we find that new
rule 12 is unlawful, we find Bellinger to be inapposite in this respect also
Chairman Fanning, who dissented in Bellinger, finds it unnecessary to
distinguish that case from the instant case, as he would find Respondent's
former rules in question to be unlawful regardless of whether they were
subsequently rescinded, and, consequently, regardless of whether the em-
ployees were effectively notified of any such rescission.
2 Chairman Fanning and Member Jenkins agree with the Administra-
tive Law Judge's conclusion that Respondent's former work rule 14 and
its current work rule 12 are unlawful on their face. In doing so, they note
that the Administrative Law Judge cited E.sex International. Inc., 211
NLRB 749 (1976), as the precedent for determining the validity of no-
solicitation rules. While they recognize that that case is current Board
law, and that under it the rules in question are illegal, they nevertheless
adhere It their dissenting opinion in that matter. Thus, they note that the
modifying phrase "regularly scheduled" inserted before the term "work-
ing time" in said rules fails to eliminalate-indeed, it exacerbates-the am-
biguity which they find inherent in the term "working time" standing
alone.
Accordingly, Chairman Fanning and Member Jenkins would modify
the Administrative Law Judge's recommended Order to prohibit Respon-
dent from maintaining any rule forbidding employees from engaging in
union solicitation luring times when they are not required to he perfiorm-
ing work tasks
' The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrtle an administrative law judge's resolutions with re-
252 NLRB No. 186
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Sani-Serv, Di-
vision of Catalox Corporation, Indianapolis, Indi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain any rule which pro-
hibits you, during nonworking time, from so-
liciting fellow employees to join or support
any labor organization. Insofar as rule 12 so
restricts your rights, it is hereby rescinded.
WE WILL NOT maintain any rule which pro-
hibits you from engaging in work stoppages in
the exercise of rights protected by Section 7 of
the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights protected by Section 7 of
the National Labor Relations Act, as amended.
SANI-SERV, DIVISION OF CATALOX
CORPORATION
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
consolidated proceeding involves allegations that the
above-named Respondent violated Section 8(a)(1), (3),
and (4) of the Act by discharging its employees Walter
Sutton and John Collins, by refusing to hire Kenneth
Britt and by discrimination in the assignment of over-
time. The charges in Cases 25-CA-10501 and 10501-2
were filed on January 5 and 8, 1979, respectively,' and
pursuant thereto a consolidated complaint issued on
March 23. The charges in Cases 25-CA-10834 and
' Unless otherwise indicated, all dates hereinafter are in 1979
1336
SANI-S KRV
10834-2 were filed on April 16 and May I1, respectively,
and pursuant thereto, a consolidated complaint issued on
June 28. On July 10, the cases were consolidated and on
August 20 and 22 a hearing was held in Indianapolis, In-
diana.
Upon the entire rec ,rd, including my observation of
the witnesses and after consideration of the briefs, I
hereby make the following:
FINDINGS 01 FACI
1. FACTUAL SETTING
Respondent is engaged in the manufacture, sale, and
distribution of food preparation equipment and related
products at a facility in Indianapolis, Indiana, which it
purchased from Burger Chef Systems, Inc., on or about
September 16, 1977.2 Certain conduct of Respondent led
to the filing of charges against it by Kenneth Britt in
Case 24-CA-10501-2 by several other individuals, and
by the International Union. United Automobile Aero-
space and Agricultural Implement Workers of America.
On December 18, 1978, the parties entered into a settle-
ment agreement providing, inter alia, for the recognition
of the Union and bargaining, and for the reinstatement of
33 employees, including Kenneth Britt, John Collins, and
Daniel E. Shreve, charging parties in Cases 25-CA-
10834 and 25-CA-10834-2.3
II. THE ALLEGED DISCRIMINATION
A. Kenneth Britt
In accordance with the terms of the settlement agree-
ment Kenneth Britt was recalled to work on January 3.
However, in accordance with a policy adopted by Re-
spondent, and not herein alleged to have been unlawful
or in breach of the settlement agreement, Britt was told
he had to take a physical examination. He did and was
given a C rating which meant a work limitation. The
rating was attributable to a back problem and Britt's eye-
sight. On January 4, Britt was told Respondent had no
work for him with such limitations. Britt protested and
was told if he could get the limitations lifted he would
be reinstated.
Britt had been treated in the past for a back problem
and had been released for work. He thereupon proceed-
ed to obtain a statement from his doctor declaring him fit
to return to work. After submitting information from his
doctor to the doctor at the clinic used by Respondent for
the physical examination of its employees, Britt was re-
classified from a C to a B classification and in February
he was returned to work. On April 4, he quit for a better
job.
The complaint alleges that Respondent refused to hire
Britt because of his union activities and his having filed
charges in Case 25-CA-10501-2. There is not a scintilla
2 Jurisdiction is not in issue Respondent admits that in 1978 it pur-
chased goods valued in excess of 50,000 which were shipped directly to
its facility from outside the State of Indiana
3 The settlement agreement was not formally approved until February
12 179 by Administrative Law Judge Jerry B Stone after a hearing on
objections to the terms of the settlement agreement by certain of the
Charging Parlies
of evidence to support the allegation. As noted above,
there is no contention that the requirement that Britt
pass a physical examination was unlawful, and the record
indicates that other employees, not involved in the settle-
ment agreement, were given C classifications which pre-
vented them from going to work. In the circumstances,
as it is clear that Britt had a history of back trouble.
there is no basis for finding a violation merely because
Respondent's doctor on the basis of his initial investiga-
tion classified Britt more stringently than would Britt's
own doctor.
B. Walter Sutton
On January 4, about 10 a.m., Sutton, who was em-
ployed in the test department, was told by Supervisor
Robert Wright to go test a machine. He did not do so
right away and Wright assertedly came over to him,
yelled at him and shook his finger at him. Sutton object-
ed to such treatment and Wright told him if he did not
like it he could hit the timeclock. Sutton testified he
started towards the test booth when Wright yelled and
directed him to his office. Wright called Superintendent
R. C. Tharp to his office where he related what had hap-
pened. According to Sutton, he was not allowed to give
his version and Tharp said, "pull his timecard and let
him get out of here."
According to Wright, after the incident when he di-
rected Sutton to get over to the test booth, he left the
work area. A few minutes later he returned and noticed
Sutton with his thermos bottle walking down the aisle
towards the timeclock. Wright asked him if he was leav-
ing and Sutton said he was. Wright told him that before
doing so he wanted to call Tharp and let him know of
the problem. They met Tharp in Wright's office and
Wright explained what happened. After he finished,
Tharp asked Sutton what he had to say and Sutton said
he was leaving and started out the door. Tharp told him
if he left he was terminated. Sutton said, "take the job
and stick it up your ass." Tharp's version of what hap-
pened in his office was essentially the same as Wright's.
As can be seen, the principal question is did Sutton
quit or was he terminated, and the answer depends on
whose version of the events of that morning I credit. I
credit Wright and Tharp principally because Sutton's
version is to me implausible as an explanation of what
happened on January 4. In making this judgment, I am
influenced in part by the fact that I can see little reason
for Respondent to select Sutton for discriminatory treat-
ment. True, he had been subpenaed to testify at the hear-
ing scheduled in the prior cases and Respondent was
aware of that fact, but there is no showing that Respon-
dent harbored any animus against Sutton because of this.
(Sutton's testimony that after he was subpenaed Wright
and Tharp stopped coming around and talking to him is,
in my judgment, meaningless and entitled to no weight.)
Moreover, the cases were settled and there is no show-
ing Sutton was involved at all in the settlement. In all
the circumstances, I conclude that General Counsel has
failed to establish by a preponderance of the evidence
that Sutton was unlawfully terminated.
1 37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. John Collins
On April 12, Collins and employee Robert Homan
were wheeling a cart with trash to a disposal area. Col-
lins testified that as they passed what is referred to in the
record as a foam booth he tripped on a broom and start-
ed to fall. To save himself from a fall, he reached out
towards a parts bin. His hand struck a foam covered re-
frigerator pan which had been produced by employee
Nute Sutton and a piece of foam broke off. Collins and
Homan continued on and finished their task. Later that
day, Collins was confronted by Tharp about the incident
and he testified that he started telling Tharp that what
had happened was an accident and Tharp interrupted
him to say that was not what had been reported to him
by Nute Sutton. Collins called Homan over to corrobo-
rate him and when he started telling Tharp it was an ac-
cident Tharp interrupted him and told Collins he was
fired.
Homan had not seen Collins trip, because he was pull-
ing the cart and Collins was behind him pushing. He tes-
tified he saw a broom laying on the floor, but that he did
not see Collins trip. He testified he tried to tell Tharp
that he did not believe the incident happened on pur-
pose, but that Tharp told him he did not know anything
about it as he was not facing Collins.
Nute Sutton testified that Homan and Collins were
walking by with a cart and Collins walked over to a
table where Sutton had laid a pan to which he had af-
fixed some foam, grabbed hold of a corner, broke the
corner off and threw it in a trash container, and went off
laughing. Later, Collins returned and told Sutton, "I
don't know what you're going to do about it," Sutton re-
ported the incident to Tharp, and, as stated above, Tharp
discharged Collins.
I credit Sutton's version of the incident leading to the
damage to the foam. Sutton was a rank-and-file employ-
ee with no motive to accuse Collins falsely of doing
damage to his work product. Since Collins, therefore,
was guilty of willfully damaging company property, a
finding that his discharge was unlawfully motivated is
unwarranted. 4
D. Discrimination in the Assignment of Overtime
The complaint alleges that since January 4 Respondent
awarded overtime to employees hired before January 4,
over former employees who were rehired and/or rein-
stated after January 4, and that it did so because the em-
ployees rehired and/or reinstated after January 4 had en-
gaged in union activities and filed charges and/or given
testimony under the Act.
The record indicates that of the 33 individuals to be
reinstated pursuant to the terms of the settlement agree-
ment referred to above, only 17 employees accepted re-
instatement. The record further indicates that for the
period from January I to the week ending August 11, of
that 17, except for the week ending June 2 when all em-
ployees worked overtime, only Mel Richardson and
Larry Quinlan worked any overtime, Richardson 8
hours, and Quinlan on four occasions for a total of 32
4 It is true the damage done by Collins was slight; however. as noted
by Tharp, it was willful.
hours. In addition, reinstated employee Walter Shelton
was twice offered overtime and refused and Morris
Kaplan and William Morris refused overtime on one oc-
casion.
According to General Counsel's Exhibit 3, during that
period of time, Respondent employed a total of 35 em-
ployees, in addition to the 17 reinstated employees, and
of this 35, again excluding the week ending June 2, 19
worked some overtime. Nine of theses worked overtime
on six or more occasions.
The disparity between the number of reinstated em-
ployees who worked overtime and the number of em-
ployees working before January 4, and the substantial
difference in the amounts of overtime suggest that Re-
spondent discriminated against the reinstated employees
because of their involvement in the prior unfair labor
practice proceeding. However, there is nothing else in
the record to support a finding of discrimination,6 and,
in my judgment, absent a showing that all employees did
the same work, mere disparity is insufficient basis for a
finding of discrimination. As a matter of fact, all employ-
ees did not do the same work and this was the reason
some employees received overtime while others did not.
According to Tharp, there were two reasons for over-
time: production needs and the consolidation of oper-
ations from two buildings to one. In the matter of pro-
duction overtime, Tharp testified it was assigned to the
same employees who were doing the work during the
regular hours. Thus, Respondent had three welders,
Eugene Lewis, Gary Paulson, and Dave Burdine, all of
whom regularly worked overtime, because of the need
for production in the area of their skill.7 In addition,
Lewis and Paulson worked overtime on welding a large
fence the company was installing. Respondent has what
it calls a high polish operation in which overtime was re-
quired. Paul Hinton was the group leader in that oper-
ation and he, Mark Mitchener, and Dwight Muston were
the only three employees qualified to this work. 8
The foregoing are examples of the reason individuals
employed before the January 4 reinstatement received
overtime to a greater degree than reinstated employees.
In my judgment, whatever suggestion of discrimination
in the disparity between the overtime assigned employees
employed before January 4 and that assigned reinstated
employees was dissipated by the explanation of Tharp
which I credit.
In addition to showing the disparity, the General
Counsel adduced testimony from three employees that
they requested and did not receive overtime. Wilbur
Thompson was an assembler and there is no evidence
any assembly work was performed on overtime. Daniel
s Gary Roberson, Eugene Lewis, David Burdine, Gary Paulson, Paul
Hinton, Mark Mitchener, Leo McClothlin, Oscar Sheehan, and Dwight
Muston.
R No adverse inference may be drawn from the fact that Respondent
entered into a settlement agreement in the prior cases. It is noted the set-
tlement agreement contained a nonadmission clause. (Appendix A, par.
II)
' Walter Shelton, one of the reinstated employees, was also a welder,
but, according to Tharp's uncontradicted testimony, he refused overtime
R As a group leader, Hinton also worked on March 10 and 17 in the
move of equipment from one building to another
1338
SANI-SERV
Shreve worked in tubing with employee Mary Zupancic
who had been working before January 4. Zupancic
worked no overtime and there is no showing that any
overtime work was performed in tubing. (The fact that
Supervisor Wright may have done work on tubing after
hours is no indication of discrimination.) Mel Richardson
was working as a buffer and he requested overtime, but
he only received some once. He corroborated Tharp's
testimony about the high polishing operation, but
claimed that other work was done which he was capable
of doing and intimated his work was done on overtime.
Whether work was done on overtime which Richardson
was capable of doing is not relevant since the uncontra-
dicted testimony of Tharp was that overtime was as-
signed according to an employee's regular job assign-
ment. As to Richardson's intimation that his work was
being done when he was not working, it was based on
his observation on visits to the plant on his day off. I am
not persuaded he had sufficient opportunity to observe to
support a finding that his work was being done by others
on overtime.
For all the foregoing reasons, I conclude that the Gen-
eral Counsel has failed to establish by a preponderance
of the evidence that Respondent discriminated against re-
instated employees in violation of Section 8(a)(1) and (3)
of the Act.
III. ALLEGED INTERFERENCE, RESTRAINT, AND
COERCION
At all times material herein until June 25, Respondent
has had in effect rules and regulations which prohibited
the following:
8. Encouraging of or participation in work slow-
down or work stoppage.
13. Encouraging solicitation on company proper-
ty.
14. Unauthorized solicitation for any purpose
during regularly scheduled working time is prohib-
ited.
The complaint alleges that Respondent maintained and
enforced these rules and thereby violated Section 8(a)(1)
of the Act. There is no evidence of the enforcement of
the rules, but it is undisputed that they were in effect
until June 25 when they were deleted or modified in a
new set of rules adopted by Respondent. The General
Counsel does not contend that the new rules are unlaw-
ful.
General Counsel has not indicated wherein the old
rules were unlawful. Rules 8 and 13 were clearly unlaw-
ful, rule 8 because it undertook to prohibit all work stop-
pages, therein including work stoppages protected by
Section 7 of the Act; and rule 13, because it undertook
to prohibit solicitation, by its broadness including union
solicitation, on company property at all times, and it is
settled law that, absent special circumstances not here
present, employees may engage in union solicitation on
company property, including work areas, during non-
working time.9
9 Stoddard-Quirk Manufacturing Co, 138 NLRB 615 (1962)
As to rule 14, I find it unlawful because it prohibits so-
licitation during "regularly scheduled" working time. In
Essex International, Inc., 211 NLRB 749 (1974), the
Board upheld the validity of no-solicitation and no-distri-
bution rules limited to "working time" or "work time."
The basis for this holding was that the Board deemed
such terms to connote the period of time spent in the
performance of actual job duties, which would not in-
clude time alloted for lunch and break periods. It was
believed employees would recognize the restrictive
meaning of the term "working time." However, Respon-
dent here prohibited solicitation during "regularly sched-
uled" working time. Presumably, Respondent meant the
prohibition to go beyond mere "working time" or the
words "regularly scheduled" were unnecessary. In my
judgment, the words "regularly scheduled" suggested
the same periods as working hours; namely, the period of
time from the beginning to the end of the workshift. If
this is not the meaning of the words, the rule is at best
ambiguous. Accordingly, rule 14 must be deemed to be
an unlawful restriction of employee rights. °
Respondent did not address itself to the legality of the
rules; rather, it contends that in light of its recission and
modification of the old rules a finding of a violation of
the Act and a remedial order are not appropriate where
the rules were not enforced and no employee was ad-
versely affected, citing among other cases, Bellinger Ship-
yards, Inc., 227 NLRB 620 (1976).
Bellinger and the other cases cited by Respondent are
distinguishable from the instant case in that in those cases
not only were the unlawful rules rescinded, but, also,
employees were notified of the action. There is no such
showing here. Apart from that, rule 14 appears in the
new rules as rule 12 and has been modified only by the
deletion of the word "unauthorized" thus continuing to
prohibit solicitation "during regularly scheduled working
time," a prohibition I deem unlawful. Accordingly, I
reject Respondent's argument and find that by maintain-
ing in effect rules 8, 13, and 14 up to June 25, and rule
12 thereafter, Respondent has interfered with employees
in the exercise of their rights guaranteed by Section 7 of
the Act and thereby violated Section 8(a)(l) of the
Act. '
IV. THE REMEDY
Having found that Respondent maintained in effect
rules against work stoppages protected by Section 7 of
the Act and prohibiting solicitation on behalf of a labor
organization during nonworking time which were unlaw-
ful, I shall recommend that Respondent rescind the rules
to the extent it has not already done so and that it take
certain affirmative action designed to effectuate the poli-
cies of the Act.
' "It is a well-established principle that ambiguity in a rule is con-
strued against the maker of the rule." Mallory Battery Company, a Division
of P R. Mallory & Co., Inc., 239 NLRB 204 (1978)
' Rule 13 of the new rule appears to be unlawful for the same reasons
given above however, as the complaint does not allege it to he unla ful.
and as there may be circumstances to justify the rule. hich Respondent
had no opportunity to litigate. I make no finding relative to its validity
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Sani-Serv, Division of Catalox Corporation, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Internationel Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By maintaining in effect rules against work stop-
pages protected by Section 7 of the Act, and prohibiting
employees from engaging in solicitation on behalf of a
labor organization during nonwork time, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Sections 8(a)(l) and 2(6) and (7) of
the Act.
4. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent vio-
lated Section 8(a)(1), (3), or (4) by discharging Walter
Sutton and John Collins, by refusing to hire, or delaying
the hire of, Kenneth Britt, or by its assignment of over-
time.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 12
The Respondent, Sani-Serv, Division of Catalox Cor-
poration, Indianapolis, Indiana, its officers, agents, suc-
cessors, and assigns, shall:
Z2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
I. Cease and desist from:
(a) Interfering with, restraining, or coercing employees
in the exercise of rights guaranteed by Section 7 of the
Act by maintaining in effect rules which prohibit work
stoppages protected by Section 7 of the Act, and prohib-
iting employees from soliciting on behalf of a labor orga-
nization during nonwork time.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the folowing affirmative action in order to ef-
fectuate the policies of the Act:
(a) Rescind rule of employee conduct 12 insofar as it
prohibits employees from soliciting on behalf of a labor
organization during nonwork time.
(b) Post at its Indianapolis, Indiana, facility, copies of
the attached notice marked "Appendix."' 3 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
ta In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
if' U.S. Government Printing Office: 1981--341-554/202
1340

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