Southwest Gas Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 543 (N.L.R.B. 1987)

SOUTHWEST GAS CORP.
Southwest Gas Corporation and Construction, Build
ing Materials and Miscellaneous Drivers Local
]Union No. 83, an affiliate of International
]Brotherhood of Teamsters , Chauffeurs, Ware-
housemen ' and Helpers of America. Case 28-
CA-8446
31 March 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFr
On 6 November 1986 Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a brief and an an-
swering brief. The General Counsel filed cross-ex-
ceptions and a, brief and a brief in support of the
judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the _ decision and the
record- in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southwest
Gas Corporation, Tucson, Arizona, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
1 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 We deny as unnecessary the General Counsel's request for a visita-
torial provision.
Hector O. Nava, Esq., for the General Counsel.
Roy E. Potts, Esq (Overton, Lyman & Prince), of Los An-
geles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matter was tried in Phoenix, Arizona, on 9 and 10 Sep-
tember 1986.1 The charge was filed on 5 May 1986 by
Construction, Building Materials and :Miscellaneous
Drivers Local Union No. 83, an affiliate of International
1 This manner of setting forth dates comports with the wishes of the
Board.
283 NLRB No. 79
543
-Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Union). The resulting com-
plaint issued on 13 June,, was amended during the trial,
and alleges that Southwest Gas Corporation (Respond-
ent) violated Section 8(a)(1) of the National Labor Rela-
tions Act (Act) about 1 May 1986 by "promnulgat[ing],
maintain[ing] and enforc[ing] a rule prohibiting union so-
licitation during working hours," and by "issu[ing] a
verbal warning to its employee, Edwin S. Fine," pursu-
ant to that rule and because of Fine's union activities. 2
I conclude below, after an examination of the relevant
evidence and applicable legal principles, that Respondent
violated the Act substantially as alleged.
1. JURISDICTION
Respondent is a public utility engaged in the distribu-
tion , and sale of natural gas. That it is an employer en-
gaged in and affecting commerce within Section 2(2),
(6), and (7) of the Act is undisputed.
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5)
of the Act.
III. THE ALLEGED MISCONDUCT
A. Evidence
Fine is one of about 60 customer service technicians
working out of Respondent's Tucson operations center.
He has been with Respondent for about 8 years, the last
5 in his present position.
In March and April 1986, Fine approached several
labor organizations about seeking to represent the cus-
tomer service technicians in Respondent's Apache Divi-
sion.3 The Apache Division _ covers southern Arizona,
and includes the Tucson facility and those in such other
localities as Bisbee, Casa Grande, Douglas, and Globe.
The Union was receptive to Fine's 'overtures, mounting
an organizational drive in April with him as chairman of
the organizing committee.
The morning of 23 April, while walking from the
parking lot to the service technicians' ready room at the
,Tucson operations center, Fine crossed paths with Ed
Morgan, a service technician out of Globe. The two
once had worked together and, in Fine's view, were
friends. Morgan was attending a line locater school at
the Tucson facility, and was on his way to the parking
lot preliminary to going out for field instruction. Fine
told him about the aborning organizational effort and
asked for his telephone number, explaining that organiz-
ers were needed in the "outlying areas." Globe is about
100 miles from Tucson. Morgan gave his number, then
2 Sec. 8(4)(1) prohibits an employer from "interfer[ing] with,
restrain[ing], or coerc [ing] employees in the exercise of the rights guaran-
teed in Section 7" of the Act . Sec. 7 guarantees employees "the right to
self-organization , to form, join, or assist labor organizations ... and to
engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection ... "
a The service technicians had been represented by Local 11116, Interna-
tional Brotherhood of Electrical Workers, until that union was decerti-
fied in 1982-a result Fine had worked to achieve.
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the two went their separate ways. The encounter lasted
no more than a minute or two.
A day or two later, according to Morgan, he men-
tioned the encounter to his supervisor in Globe, Riley
Doss. Doss told him, so Morgan recounted, that he
"couldn't discuss it with [Morgan] at all," but that, if
Morgan "wanted to make a memo as to what happened
... that was up to [him]." Morgan's purpose in talking
to Doss, he testified, "was ..., more trying to find out
what was going on than anything. . . . [A]il I did was
simply make the statement that there was some talk
about a ,union, and I wanted to know about what was
going on."
Morgan continued that he did not feel he had been
"harassed" by Fine, and that he had no "intention at all"
of complaining about Fine or causing him to receive a
warning.
Following his conversation with Doss, and after dis-
cussing the matter with "the wife," Morgan supplied
Doss with this memorandum:
I was in Tucson, attending a school for line location
at the Operation Center. On April 23, at approxi-
mately 8:50 a.m., I was going to my vehicle when I
was confronted by Ed Fine, a service tech. He ex-
plained that he was currently involved with orga-
nizing a union at Southwest Gas (The Teamsters)
and that he would like my home phone number so
that he and a union rep could contact me because it
was necessary to get the support of the other dis-
tricts. I gave him the office number and he said he
need[ed] my home phone. About this time, Jeff
Layton walked by and said he needed to see me and
Ed Fine walked away saying he would see me later.
I-have not seen or talked to Ed since.
The document, undated, is in Morgan's writing and, he
testified, was prepared at home. The Jeff Layton men-
tioned in it is ' a Tucson customer service supervisor and
Fine's immediate superior.
Morgan's memo to the contrary, Fine testified that
their meeting occurred several minutes before the 8 a.m.
start of his workday and that Layton was nowhere to be
seen . Two others, Mike McGuire, a service technician,
and-Mark McLaughlin, a construction technician attend-
ing class with Morgan, likewise testified that they saw
Fine with Morgan before '8 a.m., and that they did not
see Layton. Morgan testified consistently with his memo,
and Layton's testimony concerning his presence and the
timing of the incident mirrored Morgan's.
Whatever Fine's status, Morgan technically was "on
the clock" at the time of their encounter, his class having
convened about 7 a.m. The record contains no evidence,
however, that the encounter interfered even slightly with
Morgan's school activities, or that it caused any other
kind of work-related disruption.
On 29' April, according to Blake Down, Apache Divi-
sion vice president, he had a telephone conversation with
T. N. (Burr) 'Brackeen, superintendent of customer serv-
ice, in which.
Mr. Brackeen relayed all the particulars of the inci-
dent to me and said that they intended to have Mr.
Layton_... administer a verbal warning [to_ Fine]
because of -union activities on working time, and I
concurred
Brackeen particularized, per Down, that Morgan "had
been approached by Mr. Fine, who had solicited matters
pertaining to union organization"; and that Morgan,
When he got back to Globe, indicated to his super-
visors that this had happened to him and [he] was
not particularly happy about it, and he was told, if
you will put your complaint down in writing,
which he did.
Down testified that his conversation with Brackeen
lasted "probably five minutes"; and that, before concur-
ring in the warning, he took pains to determine when the
incident occurred, "to be sure that it was during working
time and not before work, during coffee break, lunch
hour, and so forth." Brackeen "indicated ` there was no
question about [the time] whatsoever," according to
Down.
Down testified that he is "involved pretty much in any
disciplinary procedures." He enlarged: "[I]n most cases,
it's more of an informational type thing, but I have the
option to say, `Wait a minute, let's take a second look."'
On 30 April, Layton recounted, Brackeen showed him
Morgan's memo and directed him "to have a meeting
with Mr. Fine and tell him that this is a verbal warning
for soliciting the union during company working time."
This, according to Layton, was his first "intimation" that
Fine "had been complained about " Asked if he had per-
ceived Fine to be doing anything improper when he
came upon the underlying encounter, Layton testified:
At that time, I could not perceive anything that was
more than a greeting. That's not something that
warrants a verbal warning at all, sir. It would be
like saying hello to the employee as he went by.
Next asked if he mentioned to Brackeen that he had been
a bystander during a portion of the encounter, Layton
first testified that he "possibly did say that [he] had saw
them greeting each other," later averring that he' was
"pretty certain that [he] did."
On 1 May, shortly before 8 a.m., Layton told Fine that
he and Brackeen wanted to meet with him before he
began his "daily routine." Fine asked why, to which
Layton said he thought Fine knew "what it was about."
When Fine appeared at Layton's desk about 8 a.m., Fine
repeated the question and Layton said the meeting was
"due to [Fine's] union activities." Fine asked if he could
have "another representative" with him in that event.
Layton replied that that was not necessary; that "it was
just a verbal-warning meeting" and not "any big deal."
Fine then said he was going to bring in a tape recorder
from his truck, which he did, after which the two, with-
out Brackeen, met in Brackeen's office.Layton told Fine
that Brackeen was absent because of a "miscommunica-
tion."
Layton announced at the start that "the NLRB has
regulations that govern" the conduct of employees as
well as employers, and that "it has been brought to our
SOUTHWEST GAS CORP.
attention that we have got .. • a complaint from a tech-
nician that you were soliciting for the union during com-
pany hours."
Layton continued that "it is against the NLRB rules to
do it during company hours." Fine protested that he
"didn't do it." Layton countered: "I've -got a written
complaint. OK?" Fine presently remarked that he was
"extremely aware of the law," to which Layton rejoined,
"Then tell me what the law is, then, so I can . . . under-
stand what you heard." Fine answered: "Like you say, I
cannot solicit for the union on company time nor on
company property. I cannot pass propaganda on compa-
ny time nor on company property. In other words, when
I'm at work, I'm at work." Layton said, "That's cor-
rect."
Layton shortly acknowledged that he is "not an
expert" on the law in the area, but that he did know
union solicitation "can't be done on company time" and
that lie "need[ed] to make sure that" Fine realized that.
Fine said that he did, but that he wanted to know the
identity of his "accuser." Layton replied that Respond-
ent's human resources coordinator, Susan Henning, had
that information.
Fine repeated that he had not solicited "on company
time." Layton came back that Respondent had
... to make sure that you work during working
hours ... and that the union activities are done on
your time and the person that you are soliciting,
you know, their own time, not during company
time, not interrupting work schedules.
Fine interjected that he "agreed wholeheartedly," and
Layton went on: "[I]t's kind-of like a verbal information
warning situation or whatever, however you want to call
it. . . . It's to the point it could get into disciplinary
action if we get more complaints."
Fine again proclaimed his innocence-"[I]f somebody
has said that I have solicited them on company time on
company property, they are totally incorrect." The only
thing he had done "on company time," he went on, was
to inform employees of union meetings, and,that was not
done "in such a manner to let it interfere with [his] work
schedule, either." Layton said he did not "know even if
that is a violation"; Fine said he did not know, either,
but would "`like to find out"; and Layton iterated that
the NLRB "has strict guidelines as to what can be done,
not only by the company but by the employee."
Later in the exchange, Layton remarked:
We might have to take disciplinary action ... if
this is a justified complaint. And ... if it's a justi-
fied complaint, then we need to, you know .... If
it continues from this point on .... We might
have to take further disciplinary action, and I don't'
think that you're really into that, as well as us.
Layton took notes during the meeting, even asking
Fine to repeat certain remarks, "to try to get as much of
what his feelings were about it .. ,, so that that could
also be conveyed to management or to [himself] later."
After the meeting, relying on his notes, Layton pre-
pared this memorandum:
5,45
To: FILE
From: Jeffrey O. Layton
Date: May 1, 1986
Subject : Verbal Warning and Advisory Meeting/Ed
Fine
I had a meeting with Edwin Fine on May 1, 1986
at 8:40 a.m. to advise him that management has re-
ceived a written complaint from a Service Techni-
cian. This complaint stated that Ed was soliciting
for the teamsters union during working hours.
I advised Ed that the National Labor Relations
Board has rules which govern both the company
and union actions; and solicitations for the union
during working hours violates those rules. I ex-
plained to Ed this was a verbal warning, but further
disciplinary action would be taken if he continued
solicitations during workings hours.
Ed explained that he was very aware of the
N.L.R.B. requirements and he did not want to jeop-
ardize his job. He said the only thing he has done
during working hours is to advise other employees
of union meetings, not realizing he was doing any-
thing wrong., That if advising fellow employees of
union meetings was a violation he would like to
know.
Ed stated that he still thinks Southwest Gas is a
good company; but in the past when complaints
were made about management people the problem
improved for a while, then the problem manage-
ment figure returned to their old ways.
Ed feels that employee human rights are being
violated and the union may be able to correct the
problems if the company can not. He hates to see
the situation come to this-with the union; but has
very strong feelings about what is happening to em••
ployees. He stated many are afraid they will lose
their jobs if they complain.
Layton testified that this memo was placed in a desk
file, but not in Fine's personnel file. It was not shown to
Fine.
Respondent has no generally announced prohibition
against solicitation.4 Indeed, it long has tolerated, even
encouraged, a multitude of solicitation activities on its
premises during worktime-charitable fund raising
(Junior Achievement, Girl Scouts, United Way), sports
pools, the selling of wares by employee to employee, etc.
Conceding that Respondent is "more restrictive" of
union activity than of these others, Down testified that
the latter "engender a spirit of cooperation within the
company" and that support of charitable causes "bring[s]
4 By memorandum dated 3 March 1981, Respondent rescinded a rule
entitled "Solicitation on Company Premises" out of concern that it "un-
lawfully restrict[ed] employees' rights to discuss and distribute informa-
tion on organizational or, representational matters." The memo stated in
part : "The' Company never intended to enforce, and never has enforced
the rule in such a way as to prevent solicitation on non-working time (for
instance, during breaks and lunch time, or before or after starting or'quit-
ting time), or to interfere with distribution of literature in non -working
areas[, but] . . . to remove any ambiguity or confusion which [the rule]
may have inadvertently 'caused, that rule is rescinded in its entirety
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the company a tremendous amount of credibility in the
community," whereas "union- organizing activities [are]
the exact opposite," breaking down "all the cooperative
feelings, that you have between employees, between de-
partments."
Under Respondent's four-step disciplinary system, Fine
would ,be subject to a written warning should he trans-
gress again within a year of the first offense, and to pro-
bation and then discharge in the event of third and
fourth offenses within that year. _
Brackeen, although the decision-maker as concerns the
warning, did not testify. Neither did Morgans Globe su-
pervisor, Doss.
B. Conclusions and Reasons
Whether . Fine's encounter with Morgan happened
after Fine's clock-in time, Respondent's later-communi-
cated rule curtailing union solicitation by Fine violated
Section 8(a)(1) as alleged, necessarily tainting 'the con-
comitant verbal warning, as well.
The bases for these conclusions are:
1. The limits on solicitation, as' articulated by Layton,
are invalidly broad.
"[A] rule is presumptively invalid, if it prohibits solici-
tation on the employees' own time," and a ban against
soliciting during "working hours," as distinguished from
"working time,'' comes within the adverse presumption.
Our Way, Inc.,, 268 NLRB 394, 394-395 (1983). See also
Consolidated Edison Co., 280 NLRB 338 (1986); Perth
Amboy Hospital, 279 NLRB 52 (1986); Essex Internation-
al, 211 NLRB 749 (1974). Layton couched Respondent's
prohibition in terms not only of "working hours," but
two equivalents, "company hours" and "company time."
Additionally, he endorsed Fine's formulation that he was
not to solicit "on company time nor on company prem-
ises." The adverse presumption thus obtains, and the
record contains no overriding- evidence that such a rule
is necessary to maintain production or discipline, or
serves some other legitimate interest. See Brigadier In-
dustries Corp., 271 NLRB 656, 657 (1984); Wm. H. Block
Co., 150 NLRB 341, 342-343 (1964).
2. Apart from its excessive breadth, the rule is "invalid
on its face, because it -is directed solely against union. so-
licitation." CO. W. Industries, 276 NLRB 960 (1985): See
also Montgomery Ward, 269 NLRB 598, 599 (1984);
Paceco, 237 NLRB 399, 401 (1978).
3. Beyond the rule's unwarranted breadth and facial
infirmities, Respondent's warning of Fine over the fleet-
ing exchange with Morgan, while allowing and even en-
couraging a plethora of other, far more intrusive solicita-
tion activities during worktime, demonstrates that the
rule is disparately and hence unlawfully'enforced against
union solicitation. Brigadier Industries Corp., supra at 657;
Win. H. Block to., supra at 343.
CONCLUSIONS OF LAW
'Respondent violated Section 8(a)(1) about 1 May 1986,
as alleged, by communicating a rule that curtails union
solicitation in an , overly broad and discriminatory
manner , and by issuing a verbal warning to Edwin S.
Fine to enforce that unlawful rule.
On these findings of fact and conclusions of law and
on the entire record, I issue the following, recommend-
ed
ORDER
The Respondent, Southwest Gas Corporation, Tucson,
Arizona, its officers, agents, successors, and assigns, shall
1. Cease'and desist from
(a) Communicating, maintaining , or enforcing a rule
that discriminatorily prohibits any employee from talking
about or soliciting on behalf, of Construction, Building
Materials and Miscellaneous Drivers Local Union No.
83, an affiliate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, during "working
hours," "company hours," or "company time," or on
"company premises."
(b) Issuing a verbal warning to, or otherwise disciplin-
ing or discriminating against, any employee to . enforce
such a- rule.
(c) In any like or related manner interfering with,, re-
straining, or coercing employees in the- exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following- affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from its records,, wherever situated, all
evidence of and reference to the unlawful verbal warn-
ing given to Edwin S. Fine about ' 1 May 1986, and notify
him in writing that this has been done and that the warn-
ing will not be used as a basis, in whole or part, for
future personnel action against him.
(b) Rescind the rule communicated about 1,May- 1986
that discriminatorily prohibits employees , from soliciting
on behalf of Local Union No, 83 during "working
hours," "company hours," or "company time," or On
"company premises."
(c) Post at its operations center in Tucson, Arizona,
and at each of the other facilities, in its Apache Division,
copies of the attached notice marked "Appendix:"s
Copies of the notice, on forms provided by the Regional
Director for Region 28, , after being signed by the Re-
'spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive'daysin conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
5 All outstanding motions inconsistent with this recommended Order
are denied. If no exceptions are filed as provided by Sec. 102 .46 of the
Board 's Rules and Regulations, the findings; conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
6 Divisionwide posting is appropriate inasmuch as one of the parties to
the encounter precipitating 'Respondent 's misconduct, Morgan; is em-
ployed elsewhere than in Tucson; and because the organizing drive being
divisionwide, the unlawful curtailment of solicitation presumably envi-
sions corresponding application -
If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading "Posted' by Order of the National
Labor Relations Board" shall' read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
SOUTHWEST GAS CORP.
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose, not to engage in any of these protect-
ed concerted activities.
547
WE WILL NOT communicate, maintain, or enforce a
rule which discriminatorily prohibits any employee from
talking about or soliciting on behalf of Construction,
Building Materials and Miscellaneous Drivers Local
Union No. 83, an affiliate of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America,, or any other labor organization, during "work-
ing hours," "company hours," or "company time," or on
"company premises."
WE WILL NOT issue a verbal warning to, or otherwise
discipline or discriminate against, any employee to en-
force such a rule.
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 remove from our records, wherever situated,
all', evidence of and reference to the unlawful verbal
warning given to Edwin S. Fine about 1 May 1986, and
WE WILL notify him in writing that this has been done
and that the warning will not be used as a basis, in whole
or part, for future personnel action against him.
WE WILL rescind the rule communicated about 1 May
1986 that discriminatorily prohibits employees from so-
liciting on behalf of Local Union No. 83 during "work-
ing hours," "company hours," or "company time," or on
"company premises."
SOUTHWEST GAS CORPORATION