Southwire Co.

National Labor Relations Board - Board Decisions

Jan 29, 1964

145 N.L.R.B. 1329 (N.L.R.B. 1964)

SOUTHWIRE COMPANY 1329
WE WILL NOT interrogate employees concerning their union membership,
activities, and sympathies in a manner violative of Section 8(a)(1) of the Act;
nor threaten loss of employment if they participate in union activities; nor
promise promotions and other benefits to discourage participation in such
activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
WE WILL, upon request, bargain collectively in good faith with the above-
named labor organization as the exclusive representative of the employees in
the appropriate unit described below, and embody any understanding reached
in a signed agreement:
All linemen, groundmen, helpers, and leadermen employed at our Roberts-
dale, Alabama, operation, excluding all office clerical employees, guards,
watchmen, professional employees, and supervisors as defined by the Act.
WE WILL offer immediate and full reinstatement to:
S. C. Lewis D. O. Beech Clayton Harville
George Wiggins W. A. Brown G. R. Johnson
Dwight Vaughn A. O. Mitchell Tommie Cain
W. R. Harrison H. C. Boone
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them and E. W. Perkins whole
for any loss of pay they may have suffered by reason of the discrimination
against them.
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named who may be serving in the Armed
Forces of the United States of their right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the Selective Service Act and
the Universal Military Training Service Act of 1948, as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Anyone having any question concerning this notice or compliance with its provi-
sions may communicate directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone No.
529-2411.
Southwire Company and International Union of Electrical,
Radio & Machine Workers, AFL-CIO. Cases Nos. 10-CA-5142
and 10-CA-5159. January 29, 1964.
DECISION AND ORDER
On September 12, 1963, Trial Examiner Arthur E. Reymar- issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in his attached
Decision. Thereafter, the Respondent and the General Counsel filed
exceptions to his Decision and supporting briefs.
145 NLRB No. 127.
734-070-64-vol. 145-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following addi-
tions and modifications.
1. Respondent promulgated, and at all times material herein has
maintained and distributed among its employees, a booklet entitled,
"You and Southwire Company," containing, inter alia, the following
provisions under a section entitled "No Solicitations" :
No employee or any other person shall be permitted to solicit or
promote subscriptions, pledges, memberships or any other types
of support or cooperation for any drives, campaigns, causes,
churches, corporations, individuals, organization or to collect
money for work purposes on company property. The distribu-
tion or circulation of leaflets, pamphlets or other literature are
considered promotions within the meaning of this section and are
not permitted.
This is not intended to prevent or prohibit personal discussion
among employees on any subject during nonworking time.'
As the first paragraph of this rule prohibits all forms of solicitation
by employees "on company property," without any limitation as to the
type of solicitation or any limitation to working time, it must be
construed as prohibiting employees from engaging in any union
solicitation during their nonworking time 2 As the first paragraph
similarly prohibits all forms of distribution of literature "on com-
pany property," and without any limitation to working areas, it must
be construed as a prohibition against the distribution of any union
literature by employees during their nonworking time in nonworking
areas.3 The second paragraph of the rule would appear to permit
employees to "discuss" the union during nonworking time; however,
it would also appear that any action other than mere "discussion,"
e.g., the successful solicitation of an employee's signature to a union
card so essential to the effective exercise of Section 7 rights, would
clearly go beyond such "discussion" and constitute a violation of the
rule. Moreover, this paragraph does not even purport to relax in any
1 The Trial Examiner mistakenly stated that this second paragraph was added after
issuance of the complaint herein.
2 See Walton Manufactursng Company, 126 NLRB 697, 698, 699, enfd . 289 F. 2d 177
(C.A. 5).
3 See Stoddard -Quirk Manufacturing Co., 138 NLRB 615, 621, 633
SOUTHWIRE COMPANY 1331
way the all-inclusive ban on the distribution of union literature
contained in the first paragraph. We are of the opinion, therefore,
that the second paragraph of the rule does not materially affect the
broad reach of the first paragraph with respect to union solicitation
and the distribution of union literature. Accordingly, as Respond-
ent's "No Solicitations" rule prohibits its employees from engaging in
effective union solicitation on nonworking time or the distribution
of union literature on nonworking time in nonworking areas, such
rule is presumptively invalid on its face, in the absence of evidence
that special circumstances made such a broad rule necessary to main-
tain production or discipline? As there is no such evidence here, we
find, therefore, that by maintaining and enforcing such rule with
respect to all employees, the Respondent violated Section 8 (a) (1) of
the Act.-'
2. The Trial Examiner found, and we agree, that the five discharges
in issue were not made for alleged violation of the Respondent's no-
solicitation rule, and in the case of one for alleged violation of the
Respondent's rule governing the posting of notices, but that Respond-
ent only utilized the alleged violations of these rules enlarged and
magnified as a pretext for discharging the five employees for their
union activity.'
3. Respondent's booklet, "You and Southwire Company," which it
distributed to its employees, also contained the following statement:
We are convinced that Wherever there are unions, there is trouble,
strife and discord and that a union would not work to our em-
ployees' benefit but to their serious harm.
4 Walton Manufacturing Company, supra, and U.S. Supreme Court cases there cited ;
Stoddard-Quirk Manufacturing Co, supra, N.L.R.B. v. United Aircraft Corp, 324 F 2d
128 (CA. 2).
'We do not adopt the Trial Examiner's more limited finding that Respondent violated
Section 8(a) (1) with respect to its no-solicitation rule only insofar as the rule was applied
too broadly against the dischargees involved herein. We view as inconsistent, the Trial
Examiner's finding, which we adopt snfra, that, on the one hand, the rule was only used
as a pretext for the discharges, and his finding, on the other hand, that the rule was
applied too broadly against the dischargees As the rule was only used as a pretext,
obviously it was not actually applied against the dischargees. See also footnotes 6 and 9,
snfra.
In a wholly different section of Respondent's booklet "You and Southwire Company,"
there is the following paragraph: "No person will be allowed to solicit or carry on union
organizing activities on the job. Anybody who does so and thereby neglects his own work
or interferes with the work of others will be subject to discharge." We do not find that
this paragraph is unlawful. See White Oak Acres, Inc., 134 NLRB 1145, footnote 8.
However, this wholly different paragraph in a wholly different section does not purport
to, and we find does not, affect the unlawfully broad scope of Respondent's general "No
Solicitations" rule.
9 See Idaho Potato Processors, Inc., 137 NLRB 910, enfd. 322 F. 2d 573 (C.A. 9).
In view of this pretext finding, the Trial Examiner's statement in his "Remedy" section
that these discharges were made "under the unduly broad and stringent interpretations of
said rules," is erroneous and is not adopted. Similarly, Respondent's lengthy argument,
that it believed its no-solicitation rule had been violated, is wholly irrelevant, for this
was not its true motive in effecting the discharges.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel alleged, and we find, that this statement con-
stitutes a coercive threat of "serious harm" violative of Section
8(a) (1)'
4. The Trial Examiner found, and we agree, that Respondent un-
lawfully interrogated its employees in violation of Section 8(a) (1)."
However, he inadvertently failed to include such finding in his "Con-
clusions of Law" or to provide a remedy for such violation, which we
shall correct infra.
AMENDED CONCLUSIONS OF LAW
1. The Trial Exai:Jner's conclusion of law No. 3 is amended to
read as follows :
By maintaining and enforcing a no-solicitation rule prohibiting
its employees from engaging on company property in union solici-
tation on nonworking time or the distribution of union literature
on nonworking time in nonworking areas, the Respondent has
interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
2. The Trial Examiner's conclusion of law No. 4 is deleted.
3. There is substituted for the Trial Examiner's conclusion of law
No. 4 the following conclusion of law No. 4:
By threatening its employees with serious harm for engaging
in union activity, and interrogating them concerning their union
activity, the Respondent has interfered with, restrained, and co-
erced its employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
ORDER
The Board adopts the Trial Examiner's Recommended Order as
its Order, with the following additions and modifications :
7 See White Oak Acres, Inc., supra, at 1149, 1150; Morris & Associates, Inc., 138 NLRB
1160; Rea Construction Company, 137 NLRB 1769, 1774.
8 Respondent contends that its interrogation of employees Anderson and Potts was
limited to investigation of reported violations of its no-solicitation rule on company time,
and as such was privileged However, as the record shows that Respondent at the same
time also interrogated these employees on the wholly different subject of whether they
were receiving any more letters from the Union, we find that such interrogation was un-
lawful. Cf Blue Flash Express, Inc., 109 NLRB 591.
9 As found by the Trial Examiner , Respondent only used an apparently lawful rule
against the use of bulletin boards without permission as a pretext for discharging Walker
for his union activity generally in violation of Section 8(a)(3) and (1). Accordingly,
there is no basis for this conclusion of law that Respondent enforced this rule against
Walker in a broad, restrictive , and stringent manner so as to constitute a violation of
Section 8 ( a) (1).
SOUTHWIRE COMPANY 1333
1. Paragraph 1(b) is modified to read as follows, and the counter-
part second paragraph of the Appendix is modified in similar fashion :
Maintaining and enforcing a no-solicitation rule prohibiting its
employees from engaging on company property in union solicita-
tion on nonworking time or the distribution of union literature
on nonworking time in nonworking areas.
2. Add the following as a new paragraph 1(c), and make a similar
addition as,a third paragraph in the Appendix :
Threatening its employees with serious harm for engaging in
union activity, and coercively interrogating them concerning their
union activity.
3. Change the present paragraph 1(c) to 1(d), change the words
"like or related" to "other," and make a similar change in the word-
ing of the counterpart paragraph in the Appendix io
10 In his "Remedy" section the Trial Examiner stated that he would recommend a broad
order, but then he inadvertently failed to do so in his Recommended Order. For the
reasons stated by the Trial Examiner, we agree that a broad order is appropriate here
and amend his Recommended Order accordingly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C., Section 151, et seq., herein called the Act.
International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein
sometimes called the Union, filed a charge on October 22, 1962 (Case No. 10-CA-
5142), and on November 5, 1962, filed another charge (Case No. 10-CA-5159)
against Southwire Company, herein sometimes called the Company or the Respond-
ent. Thereafter, the General Counsel of the National Labor Relations Board, on
behalf of the Board, by the Regional Director for the Tenth Region, issued order
consolidating cases, complaint and notice of hearing under date of April 10, 1963.
The complaint sets forth certain alleged violations of Section 8(a)(1) and (3) of
the Act. The Respondent, under date of May 19, 1963, filed answer to the com-
plaint, effectively denying the asserted violations of the Act.
Pursuant to notice, these consolidated cases came on to be heard before Trial
Examiner Arthur E. Reyman at Carrollton, Georgia, on May 20, 1963, the hearing
being concluded and closed on the following day. At the hearing each party was
represented by counsel and was afforded opportunity to be heard, to examine and
cross-examine witnesses, present pertinent evidence, make oral argument, and to
file briefs or proposed findings and conclusions or both. Briefs filed on behalf of
each party have been carefully considered.
Counsel for the General Counsel moved in open hearing that the Trial Examiner
take official notice of two prior Board cases. Ruling was reserved at the time, pend-
ing development of material facts. Since the close of the hearing, I have read the
two cases called to my attention: (1) Southwire Company and Local 673, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, 133 NLRB 83, September 12,
1961; and (2) Southwire Company and Local 613, International Brotherhood of
Electrical Workers, Case No. 10-CA-4546, wherein an Intermediate Report was
issued by Trial Examiner Leo Lightner on September 15, 1961, exceptions filed and
later withdrawn, and an Order entered by the Board adopting the Intermediate
Report of the Trial Examiner as its Decision and Order in the case, pro forma.
Except for a showing of a history of unrest concerning labor relations involving the
Respondent at its Carrollton plant, and hostility toward union organization and
concerted employee activity, the facts heretofore considered in the other cases are
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not material nor relevant here. Accordingly, I make the findings set forth below
independently of any finding or findings made in the other cases.'
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent, Southwire Company, is, and has been at all times material herein,
a Georgia corporation maintaining its principal office and place of business at
Carrollton, Georgia, where it is engaged in the manufacture and sale of wire cable
and related products. During the year immediately preceding the issuance of the
complaint herein, the Respondent sold and shipped products valued in excess of
$50,000 from its plant in Carrollton, Georgia, directly to points outside the State
of Georgia.
The Respondent is, and has been at all times material herein, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio & Machine Workers, AFL-CIO, has been
at all times material herein, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues on the Pleadings
The Company has published and distributes as a matter of course to each new
employee, and has attempted to insure that every employee has a copy of, a booklet
entitled "You and Southwire Company." This booklet lays down general working
rules and regulations from management's point of view and attempts to inform the
employees of company policy in respect to vacations, job security, and many other
matters of general and day-to-day situations arising during the employment of an
employee. The complaint alleges that among the provisions contained within this
booklet are some which constitute threats that employees "would suffer serious harm
if the union came in its plant"; and further, that the Respondent, by maintaining
and enforcing certain other provisions, has prohibited its employees from soliciting
their fellow employees during nonworking time to join or support any labor organiza-
tion. The complaint alleges further that by enforcing certain of these provisions, the
Respondent has prohibited its employees from distributing leaflets, pamphlets, or
other literature on behalf of any labor organization during nonworking time in non-
working areas of the Respondent's property.
1 There is no question concerning the fact that the Company had knowledge of the
Union's organizing campaign prior to September 5, 1962, and indeed, counsel for the Re-
spondent at the hearing was willing to stipulate that an organizing campaign was In
progress at the Company's plant after that time Under date of September 5, 1962, the
Company circulated a letter to its employees as follows
DEAR SouTHwinE EMPLOYEES: In the next few days we will begin our semi-annual
business report. Pressure of business has delayed our meeting while figures for the
first half year are being compiled
To the newer employees, Southwire holds two meetings each year so you may know
how the company is doing. Various management people give reports on business in
general, business outlook and forecasts, a detailed analysis of the firm's business,
Profit-Sharing Fund reports, plans for future activities and related statements
These meetings are to give you an understanding of the company's progress. This
is your company. You have a right to know
A number of you have come to me worried about another union trying to "mess
things up around here."
Here we go again a man who does not even know you or your family Is now
professing great concern about you and your future with Southwire. Doesn't it make
sense to suppose that this outsider is more interested in your pocketbook than in
your welfare?
You can stop this flood of letters and avoid another union election simply by refus-
ing to sign your rights away. Your right to work is a sacred thing Please don't
gamble your freedom on the promises of a stranger. Southwire's growth is your
future and mine
Sincerely,
RoOER J. SCHROERNER.
SOUTHWIRE COMPANY 1335
Publication, distribution, and enforcement of these provisions, it is said by the
General Counsel, have resulted in and do result in and constitute unfair labor prac-
tices affecting commerce within the meaning of Section 8(a) (1) of the Act.
The booklet under a general heading "Statement of Unionism" reads in part:
We are convinced that wherever there are unions, there is trouble, strife and
discord and that a union would not work to our employees' benefit but to their
serious harm. In view of this, it is our positive intention to oppose unionism
by every proper means. It is quite possible that from time to time you may be
approached by union representatives in an effort to sell you their wares and
encourage you to join up with them.
No person will be allowed to solicit or carry on union organizing activities on
the job. Anybody who does so and thereby neglects his work or interferes with
the work of others will be subject to discharge.
In another section of this booklet under the heading "No Solicitations" the follow-
ing paragraphs appear:
No employee or any other person shall be permitted to solicit or promote
subscriptions, pledges, memberships or any other types of support or coopera-
tion for any drives, campaigns, causes, churches, corporations, individuals,
organization or to collect money for work purposes on company property.
The distribution or circulation of leaflets, pamphlets or other literature are con-
sidered promotions within the meaning of this section and are not permitted.
This is not intended to prevent or prohibit personal discussion among em-
ployees on any subject during nonworking time.2
The General Counsel alleges that in maintaining and unlawfully enforcing the pro-
visions of "You and Southwire Company," the Respondent discharged four em-
ployees for unauthorized solicitation under its rule, and a fifth employee under the
same inhibitions, except that the reason there given was for rank insubordination in
connection with unauthorized use of a bulletin board.
"You and Southwire Company" contains, under the heading "Bulletin Boards" the
following provisions:
Bulletin Boards are located in the plant for posting of Safety information,
notices, and other items of general information to employees. Employees may
post notices on the Bulletin Boards provided such notices have been approved
by the Supervisor in charge. Notices of controversial nature will not be
permitted
Posting will be done only by employee authorized by the Company and there
shall be no other general distribution or posting upon Company property.
The Chapel Bulletin Board is restricted to notices of a religious nature.
It is said that the Respondent, by maintaining and distributing to its employees
the booklet with the provisions quoted above "has threatened its employees that they
would suffer serious harm if the Union came in its plant," and Respondent "by
maintaining and enforcing the provisions set forth . . . has prohibited its employees
from soliciting their fellow employees during non-working time to join or support
any labor organization"; and it is further alleged that the Respondent, by its per-
sonnel director, on or about October 8, 1962, "interrogated its employees concerning
their union membership, activities and desires."
The Respondent urges that the Company's rule against union solicitation and
organization is legal and proper and that the discharges for violation of this rule
were not in violation of the Act. Furthermore, the Respondent says that the con-
The clause "This is not intended to prevent or prohibit personal discussions among em-
ployees on any subject during non-working time ," was added after the issuance of the
complaint herein At the hearing the following statement , not contradicted by other
counsel , was made by counsel for the Respondent*
Mr SWIFT* May I state our opinion sirs We stand on what our rule was as of
October as far as these individuals who were discharged for violating the rule. How-
ever , after discussions, the Regional Director and his representatives took some issue
with certain portions of our rule We don't say or admit that our rule was invalid
in any way, but we have , in the interest of expediency , made certain changes and these
are the rules that we now have in effect in this Company and I think it 's a very proper
thing for you to have before you because they are contending that we have improper
rules We have made changes before you considered this case, and I think you should
have that before you
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct of the employee discharged for the unauthorized use of a bulletin board "de-
manded strict disciplinary action and his discharge can in nowise be considered a
violation of Section 8(a)(3) of the Act."
Company Policy Re Enforcement of Rules
Marvin Martin, personnel director of the Company for the past 31/2 years, testified
that the Company does not and has not attempted to interfere with the distribution
of pamphlets and other literature, prounion or otherwise, during nonworking hours
or in areas outside the plant. He testified further that the "no-solicitation" rule has
been strictly enforced except perhaps in connection with the Company's profit-
sharing plan. This plan allows employees voluntarily to participate in the profits
of the Company, so that after an employee becomes eligible to become a member of
the profit-sharing plan he has a choice of either a 3-percent or 5-percent payroll
deduction as his contribution toward the investment. When an employee becomes
eligible for participation in the plan, according to the personnel director, he may be
so notified by his superivsor or other management personnel and asked whether or
not he would like to participate in the plan. The Company contends, and I believe
rightly so, that this is not the kind of "solicitation" intended to be covered by the
rule. In other respects, according to Martin, the rule is strictly enforced. He also
said that the rule governing the use of bulletin boards is just as strictly enforced.
The Discharges of McColley, Purvis, and Holdridge
Jerry L. McColley, Sr., started to work for Southwire on October 28, 1961, as a
mechanic's helper and some 7 months later was made a mechanic. On May 17,
1962, he signed a card authorizing the Union to represent him as his bargaining
agent with the Company in regard to wages, hours, and working conditions.
McColley testified to a conversation which took place on or about August 10 or
11, 1962,3 at a time when he was working on the second shift.4 He said that he
usually comes in about 15 minutes early, and on this particular day as he was going
to get his tools and toolbox located near a Coke vending machine he talked to one
Willie (W H.) Anderson who was conversing with his brother-in-law (whose first
name appears to be Carlton), about a letter one had gotten through the mail con-
taining a union authorization card; the substance of the discussion was that the
person who received the letter, either Anderson or his brother-in-law, did not know
what it was. McColley said that he told him that it was an authorization card "for
the National Labor Relations Board to hold an election"; it appeared that Anderson
had not received one, that McColley told him that he understood that the cards
had been mailed to all employees and if he would like to have one he would get
one for him, that he did not carry them on his person but if Anderson would give
him his name and address he would send it to union headquarters at a town called
Rome and see that he got one. He then continued on to work and later Anderson
found him and handed him a piece of paper with Anderson's name and address on
it which, McColley said, he put in his shirt pocket, thought no more about it until
he got home, and then put it in an envelope to be mailed to Rome. He said he
mailed the address to H. W. Denton, a representative of the Union. Much later,
on October 5, McColley was told by one of his foremen to put his tools away and
report to the office of the personnel director; that he did so report and another
employee, Charles Purvis, Jr, was already in Martin's office; that Martin had a
copy of "You and Southwire Company" in his hand, that he read that portion of
the booklet regarding its no-solicitation or engaging in union organizing activities
on the job provisions, and thereupon handed Purvis and himself their paychecks.
Upon his inquiring why he was being discharged he was told by Martin, he said,
"On the advice of our attorneys, we feel that we have sufficient evidence to discharge
both of you." McColley was instructed to turn in his tools immediately; he got his
tools and was informed by one Hardeman, one of the supervisory personnel of
the plant, that he would accompany McColley while McColley returned to the
copper rod mill to get his tools; he carried them back to the tool crib and checked
his tools in and then, according to McColley, Hardeman accompanied him to
the locker room, and watched him change his clothes. McColley said that while
he was changing his clothes.
3 Unless specifically noted, all dates hereinafter mentioned are for the year 1962
4 The employees regularly worked 8-hour shifts from 5 a in. to 2 p in ; 2 p m. to 10 p.m. ;
and10pm to6a.m.
SOUTHWIRE COMPANY 1337
. one of the set-up men, Blackman , walked in. I said, well, I guess I'll be
leaving you, Blackman, because most of the boys around there like me. He
said, What for? I said I guess I'm accused of soliciting the Union, or some-
thing. So then Blackman went on out and I finished changing clothes and
Hardeman was staying with me all the time. We went to the door and he
held the door open for me and followed me out of the door to the locker room.
And so I said goodbye to Southwire Company.
A few days later McColley received a separation notice through the mail (dated
October 11) notifying him that he had been discharged for soliciting on company
time.
It appears clear enough that on the day in August when McColley engaged in
the conversation with Anderson and Anderson's brother-in-law he had not yet
reported for work, but that the conversation took place approximately 15 minutes
before the time McColley was due to assume his duties. It also appears that
Purvis at that time worked in the old copper rod mill, that McColley worked in
the new copper rod mill, and that Anderson's job was located in the old copper rod
mill The conversation took place in McColley's department.
Charles Purvis, Jr., started work for Southwire Company as an electrician in
the month of December 1958 and at the time of his discharge on October 5, 1962,
was working as an operator on a scrap copper baling machine. He signed a union
authorization card on February 2. His other union activity apparently was confined
to a trip with Union Representative Denton to a neighboring town to solicit authori-
zation cards from two employees and determine whether they would be willing to
serve on the union committee.
Purvis testified that at approximately 1:30 in the afternoon of October 2, about
15 minutes before he was scheduled to go to work, he was approached by Earl W.
Holdridge, an employee, and Anderson, the employee referred to above, and was
asked if he could "get him an authorization card"; that he said that he did not have
one but could obtain one later Purvis testified that he obtained some authorization
cards and that on October 4, about 1:30 p.m., Anderson came to him, asked if he
had a card, went to Purvis' jacket which was hanging on the wall about 6 feet away,
and took four authorization cards out of his jacket pocket According to Purvis,
Anderson started to put the cards in his shirt pocket, but Purvis instructed him not
to put them there, to put them under his shirt, which Anderson did and thereupon
turned and walked away.
On October 5, when Purvis reported for work he was told by Todd, his foreman,
that the personnel manager, Martin, desired to see him; he accompanied Todd to
Martin's office, and a short time later the plant foreman came in with McColley.
Purvis repeated in substance the testimony of McColley that Martin read from
"You and Southwire Company" particularly with respect to the no-solicitation rule,
then informed him and McColley that on the advice of company counsel they were
discharged "as of now." He said that when Martin gave them their paychecks,
McColley asked him if the reason for his discharge was that he was a northerner, to
which Martin replied that his background had nothing to do with it but "We have
sufficient evidence to discharge you." When Purvis left Martin's office he was
accompanied by Todd.
Earl W. Holdridge started to work for Southwire Company in September 1961 as
a millwright and at the time of his discharge was operating a baling machine. He
signed a union authorization card on September 11.
Holdridge testified that on or about October 2 he left his baling machine to go
to get a drink of water at a place approximately 100 feet away from his work
station and that on his way back employee Anderson, who was working at the smelt
furnace, asked him if he had a union card. He told Anderson that he did not have
one but that he knew a fellow who did, that about that time Purvis came by and
he instructed Purvis that if he had a card to "give this fellow one" and went back
to his job. He testified further that on October 8 his foreman, Chadwick, informed
him that Martin wanted to see him; that he washed up, went to Martin's office, and
Martin read from "You and Southwire Company" and particularly that section re-
ferring to union activities, and then told him that after conferring with the Company's
attorney "here is your check and that pays you through today." He then went back
to his workplace to obtain his tools; he went to the washroom to take a shower, when
one of Martin's assistants came in and told him, Holdridge:
Mr. Martin said you could take a bath when you get home and I said, you
mean to tell me I can't take a shower before I leave? He said, look, Holdridge,
we don't want to make this thing any worse than what it already is, so I gath-
ered up my personal belongings and left. He followed me to the door and I
left him there.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He, as well as Purvis, received written separation notices from the Company through
the mail , each stating that the reason for the discharges was for soliciting on
company time.
The employee, Willie, or W. H. Anderson, involved in the so-called solicitation
by McColley, Purvis, and Holdridge, did not testify at the hearing. According to
the testimony of Personnel Director Martin, Anderson about 2 p in. on October 4,
came to the personnel office and told Martin that Purvis had given him four au-
thorization cards and also informed Martin that McColley in the past had asked him
for his name and address so that he would receive union literature It was on the
following day that McColley and Purvis were called to Martin's office and told they
were discharged for violating the no-solicitation rule. Another employee, James H.
Potts, mentioned by Anderson as a witness to the activity of Purvis, was thereafter
called into Martin's office. Then he informed Martin that on two occasions Hold-
ridge had solicited for the Union on company time. It was on that day that Hold-
ridge was discharged for violating the no-solicitation rule. Further regarding Potts,
who testified at the hearing, he said that he saw Purvis give Anderson something
when the two employees arrived in the locker room shortly after punching out and
that Anderson told Potts that they were " union papers." According to Potts,
Anderson asked him what should be done with the cards and Potts told him to take
them to the personnel director. Martin testified that Anderson came to the person-
nel office and laid some union membership cards on his desk; said that he would
rather not tell Martin who had given him the cards but said that whoever it was
was on the job at the time. About the most that Potts contributed in his testimony
was that on one occasion, on returning to work after a meeting at which the profit-
sharing plan was discussed , Holdridge asked him what he thought about the meeting,
and that on another occasion Holdridge spoke to Purvis as he came over to instruct
Potts regarding further work.
The testimony of Potts is somewhat confusing and the most I can gather out of
it is that he heard some talk about Union or union authorization cards and did not
fully understand what the talk was about. He was called into the office of Martin
on October 8 in connection with the report made by Anderson and Potts' report
about Purvis, and Potts said that at the time he was called into the office Martin
asked him and Anderson if they were getting any more letters from the Union, that
Potts said he had not received any, and that Martin told him and Anderson that he
(Martin) was going to put a stop to people bothering them about the Union. Potts
then went on to talk about the two occasions when Holdridge had discussed the Union
with him in the plant. At most, according to Potts, Holdridge asked him one time
what he thought about the Union at a time when they both were walking back from
the meeting above referred to, where the profit-sharing plan had been discussed.
Potts understood the employees had been told that anybody could join the Union
but could be discharged and that Potts in response to Holdridge' s question said that
he wanted no part of the Union.
I believe, and I find, that at the times McColley and Purvis were asked for or sup-
plied the union cards, Anderson and his brother-in-law and Potts, if he was involved at
all, were on break time so far as Anderson, Carlton, and Potts were concerned and
that Purvis, McColley, and Holdridge (insofar as he was involved in his discussion
with Potts) were on nonworking time in that they had either not started work on
their shift or that they were on "walking time" from a profit-sharing plan discussion
meeting back to their place of work.
It is abundantly plain from the testimony of Martin himself that he had made up
his mind to fire McColley, Purvis, and Holdridge before he ever looked into the
true facts concerning their supposed solicitation of signatures to union authorization
cards.
As noted above, the Company was well aware of the union organizing campaign
being carried on in its shop . After September 1962, literature was distributed by
or at the instance of Union Representative Denton. Martin testified that the no-
solicitation rule, particularly in the case of distribution of union literature, was
enforced only in work areas. Without citing any specific instance , he said that
union literature had been distributed in nonwork areas. I can find no testimony
in the record to support this statement of Martin, and I find a great distinction be-
tween the distribution of union literature as such in the way of pamphlets and
other material and the solicitation by employees of signatures on union authorization
cards in nonwork areas or in work areas during nonworking time. I agree with
counsel for the General Counsel when he says that in the circumstances it is clearly
shown that Purvis was discharged for the distribution of union cards, which is
clearly distinguishable from the distribution of union literature. So far as union
knowledge of the feelings of McColley were concerned, he made no secret of his
SOUTHWIRE COMPANY 1339
opposition to the distribution through the mail of nonunion literature in a conversa-
tion with the president of the Company after a meeting involving the profit-
sharing plan at a meeting held shortly before his discharge.
Testimony in the record, particularly from William R. Dye, an employee of some
5 years' standing, shows that there had been solicitation of employees for various
reasons, most of which I consider minor, in the plant during the year 1962. His
testimony covered the solicitation of money to purchase a wreath in the case of a
death of the mother of one of the foremen, solicitation for the purchase of cosmetics,
for the purchase of tickets to a high school barbecue, and for contributions for church
pews5
It should be said that the testimony of McColley, Purvis, and Holdridge com-
pletely refutes the accusations of soliciting by them and it appears to me that the
incidents relied upon by the Company as a basis for their discharges were exag-
gerated, to say the least. Each one of these dischargees denied that the soliciting,
if it may be called such, was on company time and it appears by the preponderance
of the evidence that they were approached by Anderson and perhaps Potts rather
than the other employees being approached by them in connection with the supply-
ing of union authorization cards for the purpose of obtaining signatures thereto.
Anderson asked Holdridge the question near the water fountain in a conversation of
less than 1 minute's duration, the conversation consisting of whether or not Holdridge
had a union card and Holdridge simply referring Anderson to Purvis who was stand-
ing nearby. Anderson approached McColley before McColley started to work and
later Anderson voluntarily supplied his address to McColley, this occurring during
the month of August, weeks before Martin used that incident as a basis for the
discharge of McColley. Purvis was asked by Anderson if he could get a union
card for Anderson or his brother-in-law before the start of Purvis' shift and
Purvis simply said that he would get him some cards. So far as Holdridge is
concerned I find the least basis in all to consider that he solicited signatures on
union authorization cards. All he did, it seems to me, was to engage in casual
conversation. Solicitation usually involves a more active element than the mere
exchange of words during a casual walk from a meeting to a place of work.
On behalf of the Respondent, it is underlined that the General Counsel emphasized
the fact that subsequent to the discharge of McColley, Martin remarked after hear-
ing testimony on McColley's application for unemployment compensation that if
the information presented in support of this application had been before him at
the time of McColley's discharge, he would not have discharged McColley. The
Respondent contends that such a statement merely adds credence to the testimony
of Martin that he had relied upon Anderson and had acted in good faith in dis-
charging McColley, truly believing that all that Anderson had stated was true. I do
not dispute the fact that Martin relied upon what Anderson told him; however,
I doubt that Martin, in the circumstances, was justified either in questioning Ander-
son or in relying upon what Anderson had told him. The Respondent points out also
that the fact that the Company was not "out to get" McColley is shown by the fact
that Foreman Frank Brown , on October 4, 1962, the day before McColley's dis-
charge, had taken pains to sign him up for the Company's profit-sharing plan, and
had informed him that it would become effective October 28, upon conclusion of
McColley's first year of employment with the Company. The weight to be given
to this argument, in my opinion, is slight. It could be argued just as well that
Foreman Brown was not cognizant of the Company's suspicion and plan then
directed toward McColley.
Union Field Representative Denton testified with respect to events which occurred
at a hearing involving unemployment compensation for McColley held at Carrollton
on November 27. Denton reported the following conversation:
After the hearing was over, there was McColley, Mr. Stanford [attorney
for McColley and other union members], Marvin Martin and I don't remember
the attorney for the Company, was there, and myself, was in the room there,
and I said something to Marvin to the effect that he was up the creek, that
he had made a mistake with McColley, and Mr. Martin said if he had known
what had happened, the evidence that came out in this hearing, it never would
have happened. McColley never would have been discharged.
6I rejected as too remote an offer of proof on the part of counsel for the Charging Party
to show that antiunion badges were available at the company storeroom in the summer
of 1961.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. HisE.) What statement, if any, did you make to Mr. Martin?
A. I asked him why he didn't put McColley back to work, the boy wasn't
guilty, and his answer was that he couldn't. He said, "you know I've got two
men over me."
McColley testified somewhat to the same effect, and further added that Martin
told him that had he known the facts at the time of the discharge it would not have
occurred, but that he was responsible to two men over him.
The Charging Party makes the point that the testimony clearly shows that McColley,
Purvis, and Holdridge were personally escorted by supervisors to the office of Martin
on the day each was discharged and also were supervised or observed as they checked
their tools at the tool crib and later when they left the plant. Such action is said
to have demonstrated the determination of the Company to isolate union adherents
from other employees. This is, in the circumstances, a permissible inference.
The Discharge of Campbell
Francis P. Campbell was first employed by Southwire Company as a laborer in
July 1960. At the time of his discharge on October 16, 1962, he was employed as a
spectrograph operator. He signed a union card on June 29.
On the day of his discharge and approximately a half-hour prior to his regular
starting time, he telephoned the shipping department to request the removal of several
aluminum coils in front of a furnace; whoever he talked to (probably a clerk named
William J. Gattie or possibly as testified to by Martin by an employee named
Benjamin Akins) he asked to come back to the spectrograph office. Campbell fur-
ther testified that a few minutes after the telephone call, before the start of the
regular shift, Gattie came to the spectrograph office located from 200 to 300 feet
from the shipping room; Gattie took a card handed to him by Campbell and then
turned around and walked away. The card supplied to Gattie by Campbell read
as follows:
Industrial Union Dept., AFL-CIO
410 Montgomery Building
Spartanburg, S. Carolina
I am interested in information about unions.
Name: --------------------
Street Address: --------------------
City: ------------ ; Phone ------------
(Put this in an envelope and mail it to ,the address shown on this card or give it
to an organizer. Your name will be kept in full confidence.
[Union label]
Gattie immediately delivered the blank card which contained his name in the space
left for a name to his foreman, Muse, and later, about 8 a.m., Muse and Gattie gave
the card to Martin, relating the incident between Campbell and Gattie to Martin.
Campbell was called to the personnel office and in the presence of Gattie, Muse,
Foremen Hardeman, and Bass, Martin read from "You and Southwire Company,"
particularly those portions of the statement on unionism. Campbell testified that
Martin asked Campbell if he knew that three men had been discharged for violat-
ing the rule, to which Campbell told him that he had no such knowledge. Martin
asked if the card he held on his desk had been given by him to Gattie. Martin
thereupon told Campbell that he was discharged and a discharge slip subsequently
received by Campbell stated that the reason for his discharge was soliciting on com-
pany time.
Campbell stated that the card which he handed to Gattie was given to him by some-
one else for the purpose of obtaining Gattie's signature to the card and that had
Gattie signed the card he was to return it to him, Campbell, to return it to the person
who had first given it to him.
Martin testified that Gattie reported to him that he was in the office working on
some reports; that a boy named Akins had answered the telephone when it rang
in Gattie's office, that Gattie had been at work about 15 or 20 minutes when the
telephone rang and that when Campbell was called into Martin's office, he (Campbell)
verified Gattie's story word for word but at the time said nothing about the time
of day. Neither Gattie nor Akins testified at the hearing.
The Respondent argues that it seems quite unlikely (1) because of the fact that
both Akins and Gattie were not supposed to commence work until 6 o'clock, and
that both of them were in the shipping office when Campbell called, and that (2)
more significantly, according to Campbell, he and Gattie actually decided on the dis-
position of the aluminum coils and that they both were at work on company time
SOUTHWIRE COMPANY 1341
when the incident occurred, that Campbell solicited Gattie's signature on company
time I observed Campbell and heard his testimony, uncontradicted except to the
extent Martin testified. I credit his testimony.
The Discharge of Walker
John T. Walker was employed by Southwire in August 1961. He is a member of
the union organizing committee.
The Company maintains some 11 bulletin boards throughout its offices and plant
and, as above noted, "You and Southwire Company" has a work rule governing the
posting of notices on these boards which requires in part that employees may post
notices on the bulletin boards provided such notices have been approved by the su-
pervisor in charge.
On the afternoon of October 20, Walker, without obtaining permission from any
supervisor, posted an identical notice on three bulletin boards which read as follows:
IT'S I.U.E. FOR-1963
WHY do we work for non
union wages when the
company we work for
requires salty [sic] shoes that
are union made?
According to the testimony of Walker, after posting these notices he went to
work in the rod mill area and shortly thereafter Foreman Joe Bass removed the
notice from the aluminum rod mill bulletin board, looked at Walker and said, "Who
in the hell put that up there? I think I know " Walker also testified that a few
days after he had posted these notices, Foreman Lamanick and he were discussing
the Union while they were at lunch and that Lamanick told Walker that he wished
he would change his mind, that he hated to see Walker get hurt, and asked Walker
to see Bass who could straighten things out for him. Walker said.
It was approximately a week later and we were talking and discussing the Union
and he told me he wished I would change my mind. That he hated to see
me get hurt and he also asked that I go in and talk with Joe Bass. He thought
Joe could straighten things out for me. He said that he wanted-he wished
I would change my mind before I got hurt and I told him I didn't think I
could right then. And he said that they were watching me and would find a
reason to fire me and I told him that I realized that
After the posting of the notices and after they were brought to Martin, Martin
searched through some of his files to see if he could identify the lettering on the
notice, and in so doing pulled from the files , among others , Walker's application for
employment and his health service-health history form, both of which contained
considerable writing and printing in the handwriting of Walker , and sent these
documents to one Harry M. Ashton , an examiner of questioned documents with
offices in St. Petersburg, Florida, together with the copies of the notice removed
from the bulletin boards and given to Martin. Ashton, in his written document
examination report submitted under date of October 26, said in conclusion:
Evidence developed by this examination shows conclusively , in my opinion,
that the writing on all three slips of paper described as Exhibit Q-1, was
written by the author of the writing on the application for employment and
personal history form, described as Exhibit K-1.
On October 29, Walker was summoned to Martin's office and upon his arrival
Martin displayed the three notices to Walker and asked him if he had put them on
the bulletin board . Walker denied having done so. Martin then informed Walker
that 'a handwriting expert had examined them , that the handwriting on the notice
was the same as on his employment application, and that Walker was lying Martin
at this time told Walker that after investigation he had decided to give Walker a
warning slip , but that in view of the fact that Walker had lied concerning the post-
ing of the notices, he , Walker, was discharged . There is no significant variance
in the testimony of Walker and Martin as to these facts . In answer to a question
by counsel for the Union as to why he had told Martin that he had not posted them,
Walker replied, "I was afraid he would fire me. There had already been four men
fired for union activities." On cross-examination by counsel for the Respondent,
Walker conceded that he continued to deny posting the notices even after Martin
had showed him the warning slip which Martin had prepared before the meeting.
Testimony in this respect is as follows:
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. SWIFT.) You became more and more emphatic in your denial,
did you not?
A. I don't know if I get what you mean.
Q. More positive in your statements.
A. Well, when he called me in there, I figured I was fired when I walked
in because other guys had been fired for union activities and he didn't offer
them a warning slip.
The insistence by Walker that he did not post the notices would militate more
against him except for the fact that Foreman Lamanick did not testify at the hear-
ing and the conversation with him as reported by Walker, quoted above, stands
uncontradicted on the record.
The Respondent states in the brief filed on its behalf that the sole issue is whether
or not Martin had a right to take the stringent disciplinary action that he took in
Walker's case. The written separation notice received by Walker states the reason
for his discharge to be "gross insubordination. Lying to cover bulletin board
violation." Were the situation to arise in a climate unaffected by union activity,
company hostility to union organization, and totally unrelated to anything other
than the bare fact of violation and a denial thereof, I should be inclined to agree
that the Respondent has defined the issue correctly. However, I think that Walker's
case cannot be isolated, in the whole congeries of the facts herein disclosed, and
I therefore shall consider this case in connection with the disposition of the other
men alleged herein to have been discharged in violation of Section 8(a)(3).
Interrogation
The complaint alleges that Personnel Director Martin, on or about October 8,
1962, "interrogated its [Respondent's] employees concerning their union member-
ship, activities and desires." As hereinbefore noted, Martin did, in connection with
his investigation of the alleged solicitation by Purvis, inquire from Potts and Ander-
son as to what actually did transpire during the time they were talking 'about.
Potts and Anderson, as noted, both were nonsupervisory employees of the Company.
The testimony of Martin supports the testimony of Potts concerning the interroga-
tion of them by Martin and of another time when it appears that Martin inquired
closely from Potts concerning an alleged conversation or conversations between
Potts and Holdridge, concerning the advisability of union membership and when
Potts expressed himself, he said, as being opposed to the Union. This information
was derived from Potts by Martin in the latter's office.
Concluding Findings
The Respondent asserts that it must be determined whether McColley "or for that
matter any of the other individuals," actually violated the rule against union or-
ganization and solicitation on company time; and that the sole question "is whether
Martin believed that McColley had violated this rule." Relying on (among others)
N.L.R B v. John S. Swift Company, Inc., 277 F. 2d 641, 645-646 (C.A. 7);
N.L.R.B. v. Arthur Winer, Inc., 194 F. 2d 370-375 (C.A. 7); N.L.R.B. v. Kaye,
272 F. 2d 112 (C A. 7), the Respondent says that there is nothing in the record
to indicate that Martin did not believe the information which prompted the
discharges.
I do not believe these or other cases go so far. The element of belief of alleged
violations of company rules and regulations is of course an important one, but is
not the only one to be considered; otherwise, the subjective thinking of Martin,
alone, without regard to any of the surrounding circumstances, would allow him
as well as any other personnel manager for any other company simply to assert
that he believed that violations of rules had occurred, without regard to whether
such violations had or had not occurred, and without further investigation of the
facts. Actually, here Martin asserts that he did make further investigation of the
facts in the cases involving each one of the men and based on such information the
discharges were consummated.
The General Counsel and the Charging Party take the view that the application
of the rules mentioned above as promulgated in "You and Southwire Company"
demonstrate by the weight of the evidence that the discharges were made because
of the union activity or interest of these men in the Union.
The General Counsel takes the further view, at least impliedly, that the provisions
of "You and Southwire Company" are invalid on their face; on the other hand,
Respondent argues that the promulgation of these rules and regulations was perfectly
within the right of the Respondent, are enforceable and were properly enforced
through these discharges.
SOUTHWIRE COMPANY 1343
The rules and regulations contained within the booklet , in themselves , if properly
applied, could be regarded as privileged and not in contravention of Section 8(c)
of the Act. In other words, the mere publication and distribution of these rules
and regulations, without more, would not be, per se, a violation of the Act.
I take a strong view, however, that management rules and regulations which may
be permissible on their face may be so broadly applied or interpreted so as to result
in violations of Section 7. If in practice a rule is applied too broadly or too strin-
gently, its language may become meaningless and the rule become void
It is certainly true, as the Board remarked in Mayrath Company, 132 NLRB 1628,
1629, that an employer may take reasonable steps to insure full production of his
product or maintain discipline.
For background purposes I believe I may take official notice, as requested, of the
prior unfair labor practice cases involving this same Respondent as reported in 133
NLRB 83, September 12, 1961, enforced by per curiam order of the Fifth Circuit
Court of Appeals on March 6, 1963 [313 F. 2d 638]. These cases are now officially
noted for background purposes and for the reasons set forth above .r,
In determining the issues here, I have relied greatly on the language of the Board
in Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1364:
The Trial Examiner found that the Respondent's rule against solicitation dur-
ing working hours did not violate Section 8(a) (1) of the Act. We disagree.
In Republic Aviation Corp. v. N L.R.B., 324 U.S. 793, the Supreme Court ap-
proved the presumption the Board adopted in the Peyton Packing case [49
NLRB 828, 843-844]. The Court said (at 844) :
The Act, of course, does not prevent an employer 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 to be valid in the
absence of evidence that it was adopted for discriminatory purpose.
The complaint alleges that the Respondent interrogated its employees concerning
their union membership, activities, and desires. Again quoting from the decision
of the Board in Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1359-1360:
The Respondent contends that the circumstances of this case take these in-
stances of interrogation outside the proscriptions of the Act. We disagree We
again affirm the position the Board has consistently taken that Section 8(a)(1)
of the Act is violated when an employer interrogates his employees concerning
any aspect of union activity. [Emphasis supplied ]
Purvis and McColley were discharged on the basis of the statement of Anderson
made to Martin; also, Purvis' discharge was based upon his alleged actions in dis-
tributing union authorization cards. McColley's discharge was based upon events
which had occurred in August. His discharge, as well as that of Holdridge, discloses
no proper inquiry before affording them opportunity to explain the circumstances of
the incidents in which they were involved.
With regard to Holdridge, it is contended on his behalf that it was in violation
of the Act because of disparate treatment. It is argued that it is true that at the
time Martin was informed of Holdridge's conversation with Potts he was not aware
of Anderson's activity as such in the instigation of various discussions or solicitations
for signatures to authorization cards and that Martin did become aware of Ander-
son's actions during the unemployment compensation hearings. Therefore, it is
said, the failure of Martin to discharge Anderson upon learning of Anderson's actions
amounts to disparate treatment clearly revealing that Holdridge was discharged be-
cause of his union membership or activity therein.?
9 In N.L R B. v Mayrath Company, 319 F. 2d 424 (C A. 7), the court quoted with ap-
proval from Sunshine Biscuits, Inc. v. N.L R.B., 274 F. 2d 738, 741:
We do not think the evidence relating to . . . discharge can properly be considered
in a vacuum, separate and apart from that relating to petitioner's anti-union
attitude . .
Section 10(b) does not require exclusion of background evidence. Axelson Manufacturing
Company, 88 NLRB 761. And it has been held to be error to exclude evidence bearing on
8(a) (3) motivation and offered for background purposes only, even though (1) not alleged
in the complaint or (2) barred by the 6 months' rule. Cf. United States Rubber, 93
NLRB 1232.
7 At the hearing it was disclosed that Anderson had subsequently been discharged by the
Company. No reason was given for this action.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, in regard to this solicitation, I have been intrigued by the language con-
tained in the no-solicitation rule The rule says that no person will be allowed to
solicit or carry on union organizing activities on the job and that anybody who does
so and thereby neglects his own work or interferes with the work of others will be
subject to discharge. I cannot find that even if the solicitation alleged by the Com-
pany had occurred during working hours on company property the employees in-
volved were neglecting their work or interfering with the work of others Holdridge
did not distribute union cards on the job and apparently his greatest offense was the
report that he had remarked upon the merits of the Union with Potts at a time when
they were not required to be working at their jobs. I am not sure, either, that
McColley was guilty of violation of the rule when he ,talked with Anderson and, as
stated above, the fact that his discharge occurred weeks after the alleged offense
gives rise to the question as to whether or not the no-solicitation rule was invoked
against him simply as an excuse to get rid of him because it was known or suspected
by management officials that he was a member of or was interested in the Union. If
the dischargees mentioned were soliciting, it is dubious indeed that such soliciting was
on company time. I am convinced, and I find in whole context, that McColley,
Purvis, and Holdridge were not soliciting to such an extent, if at all, within a mean-
ing possibly to be supported by the language of the no-solicitation rule such as to
require their discharge.
Campbell seemed to me to be a credible witness and I am inclined to believe
him when he said that his discussion in connection with securing the signature to
an application card by Gattie was not on company time. Here again, Martin had
made up has mind, apparently, to discharge Campbell on the basis of statements
made to him by Gattie or Akin, the other person who might have taken the telephone
call from Campbell on the day of the latter's discharge.
The different case presented by the Walker incident is not too difficult to deter-
mine. As related more fully above, after Martin had determined that Walker was
responsible for the unauthorized posting of notices, he had determined to give
Walker a warning slip, but when Walker denied that he had posted the notices Martin
lost his temper and discharged him There is no question concerning the fact that
Walker did post the "IUE for 1963" notice on three boards without authorization
or permission from his supervisor or other appropriate member of management; nor
is there any question but that he told an untruth to Martin when Martin confronted
him with the notices and accused him of having posted them A plain violation of
the rule governing the use of bulletin boards is thus established prima facie.
Walker stated frankly that the reason he lied to Martin was that he was afraid
he would lose his job. That he had good reason to believe that he had been under
surveillance and might be subject to discharge is evidenced by his testimony, uncon-
tradicted, about his conversation with Foreman Lamanick. The written reason sup-
plied to Walker for his discharge was for gross insubordination, because of the lies
told by him to Walker concerning the posting of the notice on the three bulletin
boards. It is necessary to determine here whether the false answer to avoid dis-
charge, in the face of the rule, is ground for discharge or whether such false answer
may be excused, even though demonstrating untrustworthiness, if it did not amount,
as charged, to "gross insubordination."
The Board in at least one previous case in somewhat similar circumstances (St.
Louis Car Company, 108 NLRB 1523) refused to accept a false answer made by an
employee to an official of management as ground for discharge There the Board
wrote (p. 1524)
The Trial Examiner, who had the advantage of observing the demeanor of
the witnesses, discredited Meissner's explanation that he had discharged Kellogg
because of her untruthful answer and found that the real reason for the discharge
was Kellogg's leadership in the union activity. We agree with this conclusion
of the Trial Examiner
The Act does not interfere with an employer's right to discharge an employee
for any reason or no reason. The employer may not, however, "under cover of
that right" discriminate against employees for exercising the right to self-
organization guaranteed them in Section 7 of the Act The question of deter-
mining the motive that prompted an employer in effecting a discharge is in-
herently difficult. The professed motive is not always the real one. There is
no readymade measuring rod by which it is possible to determine whether the
professed motive is in fact the true motive or only a subtle pretext intended to
disguise an unlawful one....
In the instant case, it seems to me that Walker, being under survelliance, told
the untruth he did, not related to the conduct of the business of the Respondent,
SOUTHWIRE COMPANY 1345
in the hope of saving personal rights guaranteed to him by the statute; that he
attempted to protect his personal rights to support the Union by refusing to disclose
facts which might prejudice him in the exercise of those rights. Further, although
there is testimony to the effect that minor notices of acknowledgment of thanks
and the like were posted on the bulletin boards from time to time, there is no
affirmative testimony in the record showing that permission was obtained for the
posting of any of these notices; and further, insofar as the record shows herein,
Walker had never been subject to reprimand by reason of the way he performed
his work.
In whole context, I find that the discharges of the five men whose cases are
herein considered were not made solely to maintain and enforce the no-solicitation
rule and the rule governing the posting of notices. It seems to me that in each case
the Company, having direct or implied knowledge of the interest of each of these
men in the Union, utilized facts enlarged and magnified as pretext for the discharge
of each one of these men.
I find that by maintaining and enforcing its broad rules in the manner in which
it elected so to do, the Respondent violated Section 8(a) (1) of the Act. In
Texas Aluminum Co., Inc., 131 NLRB 443, the Board held:
The Respondent's broad rule forbidding solicitation for membership in any
organization on company property was presumptively an unreasonable im-
pediment to self-organization and therefore unlawful in the absence of evidence
that special circumstances made the rule necessary to maintain production or
discipline. [Citing Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793;
Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177
(C.A.5).]
I find that by interrogating its employees Anderson and Potts, among others,
and by the manner in which it enforced the rule broadly prohibiting its employees
engaging in union solicitation on company property during their nonworking time,
the Respondent engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act. I further find that the Respondent by discharging employees
Jerry L. McColley, Sr., and Charles Purvis, Jr., on October 5, Earl W. Holdridge
on October 8, Francis P. Campbell on October 16, and John T. Walker on October
29, 1962, by reason of their interest in, activities on behalf of, and membership in
the Union, engaged in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the manner of maintenance and enforcement of the Respond-
ent's rules governing solicitation and the use of bulletin boards constitutes inter-
ference, restraint, and coercion with the rights guaranteed its employees, it is
recommended that the Respondent be ordered to discontinue in such manner from
maintaining and enforcing these rules or any other rules set forth in its publication
"Southwire and You" forbidding employees, under penalty, from soliciting employ-
ees to join any organization, including a labor organization, on company property
during their nonworking hours or to use, particularly, a bulletin board rule as a
device to discharge any employee for the unauthorized use thereof.
Having also found that the Respondent discriminated with regard to the hire
and tenure of employment of Jerry L. McColley, Sr., Charles Purvis, Jr., Earl W.
Holdridge, Francis P. Campbell, and John T. Walker under the unduly broad and
stringent interpretations of said rules, the Trial Examiner recommends that the
Respondent offer each of them immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay suffered as a result of the
discrimination against him, by payment to him of a sum of money equal to the
amount he would have earned from the date of the discrimination to the date of
the offer of reinstatement, less net earnings to be computed on the quarterly basis
in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289;
N.L.R.B. v. Seven-Up Bottling Company, 344 U.S. 344. It is further recommended
that the amount of backpay each would have earned during the period of his dis-
7 3 4-070-6 4-v of 14 5--8 6
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, less his net earnings, if any, during these periods be incremented in the
amount of 6 percent per annum as interest to be added to the, amount of backpay
found to be due each employee, as provided by the Board in its Decision in Isis
Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to make available to the
Board or its agents, upon request, payroll and other records to facilitate the check-
ing of the amount of backpay due the named discriminatees.
In view of the nature of the unfair labor practices committed, and in view of the
finding of unfair labor practices committed in prior cases considered by the Board
(above mentioned), the commission of similar and other unfair labor practices
reasonably may be anticipated. I shall therefore recommend that the Respondent
be ordered to cease and desist from in any manner infringing upon the rights
guaranteed its employees in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Southwire Company, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio & Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By maintaining and enforcing in a broad, restrictive, and stringent manner
rules and regulations prohibiting employees from soliciting membership in any
organization, including a labor organization, on company property during non-
working hours under penalty of discharge, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)( 1 ) of the Act.
4. Further, in enforcing as it did the rule against the use of bulletin boards in a
broad, restrictive, and stringent manner, as in the case of John T. Walker, the
Respondent has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act and has thereby engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. By discharging Jerry L. McColley, Sr., Charles Purvis, Jr., Earl W. Holdridge,
Francis P. Campbell, and John T. Walker under the circumstances set forth in
section III hereof, the Respondent has discriminated with respect to their hire or
tenure of employment, thereby discouraging the free exercise of the rights guar-
anteed by Section 7 of the Act and discouraging membership in and activities on
behalf of International Union of Electrical, Radio & Machine Workers, AFL-CIO,
or any other labor organization, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recommended that the National Labor
Relations Board order that the Respondent, Southwire Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union of Electrical, Radio &
Machine Workers, AFL-CIO, or any other labor organization of its employees,
by discriminating against its employees in regard to the hire or tenure of their
employment.
(b) Maintaining or enforcing a rule or rules and regulations broadly prohibiting
its employees from engaging in union solicitation on company property during their
nonworking time, or interpreting and applying any such rule so broadly and strin-
gently so as to interfere with, intimidate, or coerce employees in violation of the
provisions in Section 7 of the Act.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in any
other concerted activity for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
SOUTHWIRE COMPANY 1347
(a) Offer Jerry L. McColley, Sr., Charles Purvis, Jr., Earl W. Holdridge,
Francis P. Campbell, and John T. Walker immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for any loss of pay they may
have suffered by reason of the discrimination against them, in the manner set forth
in the section of this Trial Examiner's Decision entitled "The Remedy."
(b) Post at its plant and offices in Carrollton, Georgia, copies of the attached
notice marked "Appendix." 8 Copies of said notice , to be furnished by the
Regional Director for the Tenth Region, shall, after being signed by the Respondent's
authorized representative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region, in writing, within 10
days from the date of this Decision, what steps Respondent has taken to comply
therewith.9
8If this Recommended Order 7s adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
In the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order "
9If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Tenth Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Interna-
tional Union of Electrical, Radio & Machine Workers, AFL-CIO, or any other
labor organization, by discharging any of our employees, or in any like or
related manner discriminating against them in regard to their hire or tenure of
employment.
WE WILL NOT maintain or enforce any rule prohibiting employees from en-
gaging in union solicitation on company property during their nonworking time.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist International Union of Electrical, Radio & Ma-
chine Workers, AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer Jerry L. McColley, Sr., Charles Purvis, Jr., Earl W. Holdridge,
Francis P. Campbell, and John T. Walker immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges previously enjoyed by them and make
them whole for any loss of pay suffered by them as a result of the discrimina-
tion against them.
SOUTHWIRE COMPANY,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone No.
876-3311, Extension 5357, if they have any question concerning this notice or com-
pliance with its provisions.