Stoddard-Quirk Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 18, 1962

138 N.L.R.B. 615 (N.L.R.B. 1962)

STODDARD-Q[ 1RK MANUFACTURING CO. 615
(c) Notify the said Regional Director, in writing , within 20 days of the receipt
of this Recommended Order, what steps it has taken to comply therewith?
'In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read• "Notify said Regional Director , 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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL BARGAIN collectively , upon request , with Lodge 2222, 'International
Association of Machinists , AFL-CIO, as the exclusive bargaining representative
of all employees in the bargaining unit described below concerning grievances,
labor disputes , wages, rates of pay, hours of employment , and other conditions
of work , and, if an understanding is reached , embody it in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed at the Employer's
place of business in Alliance , Ohio, exclusive of all office clerical employees
and all guards , professional employees , and supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively as aforesaid , nor will we in any
like or related manner, interfere with, restrain, or coerce our employees in the
exercise of their right to bargain collectively through the said Union or any other
labor organization of their own choosing.
KEENER RUBBER, INC.,
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, 720 Bulk-
ley Building , 1501 Euclid Avenue, Cleveland , Ohio, Telephone Number, Maine
1-4465, if they have any question concerning this notice or compliance with its
provisions.
Stoddard -Quirk Manufacturing Co. and International Wood-
workers of America , AFL-CIO. Case No. 26-CA-948. Septem-
ber 18, 1962
DECISION AND ORDER
On April 26, 1961, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and Was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
138 NLRB No. 75.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified below :
Invoking the principles enunicated by the Board in the Walton
case,' the Trial Examiner found that Respondent's shop rule which
prohibits "unauthorized distribution of literature of any description
on company premises" is violative of Section 8(a) (1) of the Act,
since the rule applies to employees who might wish to distribute union
literature when they are not actually at work.
We agree with the Trial Examiner's conclusion, but we predicate
our agreement on the additional factor that the prohibition embodied
in the rule in question is concededly applicable to nonworking areas
of "company premises," for example, the parking lot adjacent to the
plant buildings. Implicit here, of course, is a limitation on the ap-
parent scope of the principles enunciated in WValton, which, in turn,
calls for a corresponding modification of the Trial Examiner's rec-
ommended order.
In short, we believe, contrary to our dissenting colleagues, that a
real distinction exists in law and in fact between oral solicitation on
the one hand and distribution of literature on the other. Further,
we believe that logic and precedent call for recognition of this dis-
tinction and its legal effects. A brief review of the relevant factors
and of the precedents in this area will make clear our views in this
regard.
1. The principles which the Board deems controlling in respect to
union solicitation and distribution of union literature when these ac-
tivities occur on property subject to the employer's ownership and
dominion had their genesis in the early days of the Wagner Act. The
course of development of those principles, attended by it mass of
Board and court litigation, has not always been smooth, and, it seems
fair to say, the application of those principles to particular fact situa-
tions has not always been wholly consistent 2
Nevertheless, certain basic postulates have gained general accept-
ance. The Supreme Court long ago made clear in Republic Aviation
Corporation v. N.L.R.B., supra, that the validity of employer rules
'Walton Manufacturing Company , 126 NLRB 697 ( February 1960 ), enfd. 289 F. 2d
117 (CA. 5). In that case the Board articulated certain principles with respect to no-
solicitation and no-distribution rules which it regarded as being established by three prior
decisions of the Supreme Court:
(1) Republic Aviation Corporation v. NL.RB, 324 U.S. 793, upholding the Board's
decisions in Republic Aviation Corporation, 51 NLRB 1186, and LeTourneau Company
of Georgia, 54 NLRB 1253.
(2) N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S 105, reversing 109 NLRB
485; Rance , Inc., 109 NLRB 998; and Seamprufe, Inc. (Holdenvalle Plant ), 109 NLRB 24.
(3) NL.R .B. v. United Steelworkers of America, CIO (Nutone, Inc ), 357 US 357,
upholding 112 NLRB 1153, but reversing Avondale Mills , 115 NLRB 840.
2 This is not surprising As set forth more fully in the text , what is involved basically
In each case arising In this area is the necessity of striking a proper adjustment between
conflicting rights against the background of particular fact situations . See N.L.R.B. V.
United Steelworkers of America, CIO (Nutone, Inc.), supra, at 362-363 . That reasonable
men can and do differ in striking this adjustment can readily be understood
STODDARD -QUIRK MANUFACTURING CO. 617
restricting union solicitation or distribution of union literature on
plant premises depends upon "an adjustment between the undisputed
right of self-organization assured to employees under the Wagner Act
and the equally undisputed right of employers to maintain discipline
in their establishments." 324 U.S. 793, 797-798. Neither right is un-
limited. "Opportunity to organize and proper discipline are both
essential elements in a balanced society." Ibid.
Where there is no necessary conflict neither right should be
abridged. By the same taken, where conflict does exist, the abridge-
ment of either right should be kept to a minimum. The Supreme
Court stated this principle and its underlying rationale in N.L.R.B.
v. The Babcock d Wilcox Company, 351 U.S. 105, 112.
This is not a problem of always open or always closed doors
for union organization on company property. Organization
rights are granted to workers by the same authority, the National
Government, that preserves property rights. Accommodation
between the two must be obtained with as little destruction of the
one as is consistent with the maintenance of the other. [Emphasis
supplied.] 3
It follows, we believe, that the formulation of generalized rules in
this area must be undertaken with caution for, patently, differing fact
situations call for differing accommodations. The Supreme Court in
the most recent of its utterances in this field pointedly reminded us in
a closely related context that "mechanical answers" will not avail "for
the solution of this non-mechanical complex problem in labor manage-
ment relations." N.L.R.B. v. United Steelworkers of America, CIO
(Nutone, Inc.), supra, at 364.
2. Generally speaking, the development of the law regarding oral
solicitation has been attended by less travail than that regarding dis-
tribution of literature. Almost from the outset the Board has held
with court approval that an employer may in the normal situation
make and enforce a rule forbidding his employees to engage in such
union solicitation during working time ("working time is for work"),
but that a broad rule banning such activity during nonworking time
is presumptively invalid. Peyton Packing Company, Inc., 49 NLRB
828, 843-844, cited with approval in Republic Aviation Corporation
v. N.L.R.B., supra, at 803.4
8 We are aware, of course, that the Babcock & Wilcox case has to do ultimately with the
rights of nonemployees as contrasted with the rights of employees . This does not gainsay
the fact that the quoted language-and, indeed , much of the Supreme Court's opinion-
deals with the general principles elucidated in Republic Aviation and reaffirms those prin-
ciples. The difference in result is attributable , as the opinion notes, to the Board's
failure to take into account in Its equation the subordinate status of nonemployees as
compared to that of employees in the use of an employer 's premises.
' Even this simple doctrine, however , is subject to exception where special circum-
stances exist . For example , employee solicitation can be forbidden even during non-
working time where the nature of the employer 's business requires such a broad limita-
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The relatively smooth evolution of the law respecting oral solici-
tation has been lacking with respect to the law relating to distribution
of literature. As the Court of Appeals for the District of Columbia
observed in the Nutone case, supra, footnote 1, "No-distribution rules
have had a checkered history" (243 F. 2d 593, 597). The opinion in
that case correctly recites (at 597-598) :
At one time the Board held that in the interests of keeping the
plant clean and orderly it was not unreasonable for an employer
to prohibit the distribution of literature on plant premises at all
times. Later the Board took the position that, absent a particular
showing that the rule was necessary to plant discipline, an em-
ployer could not validly apply such a rule to employees on non-
working time. Finally, in Monolith Portland Cement Company
[94 NLRB 1358] the Board held that a, no-distribution rule relat-
ing to the plant proper could be applied generally to non-working
time absent special circumstances, discrimination, or a specific
purpose to suppress self-organization. (Footnotes omitted.)
It was the last of these formulations which the Board had espoused
in its earlier decisions in the LeTourneau Company of Georgia, 54
NLRB 1253. In the LeTourneau case the Board was squarely pre-
sented with the issue "whether a rule prohibiting distribution of liter-
ature by employees in an area outside the plant proper, although on
company property, is itself repugnant to the Act under the circum-
stances of this case." Supra, at 1259. (The LeTourneau case in-
volved employee distribution of union literature in a company park-
ing lot.) In answer to the contention that prior Board authority
justified a ban on distribution of union literature anywhere on com-
pany premises, the Board said that it did not agree. Rather, the
LeTourneau decision notes that the "[c]onsiderations of efficiency
and order which may be deemed of first importance within buildings
where production is being carried on do not have the same force in
the case of parking lots." Supra, at 1261. The Board thus recog-
nized a distinction between the considerations applicable to produc-
tion or working areas and those applicable to nonworking areas.
It was this LeTourneau decision which came before the Supreme
Court for review along with Republic Aviation, a case which pre-
sented the classic working time versus nonworking time distinction
tion, e.g., the selling floors of a department store The May Department Stores Company,
et al., 59 NLRB 976, enfd. 154 F. 2d 533 (C.A. 8), cert. denied 329 II S. 725 In this
connection it may be noted that our colleagues cite and rely upon a more recent case by
the same name reported at 136 NLRB 797. There were divided opinions in that case
but implicit in both opinions was recognition of the normal right of a department store
owner to preclude employee solicitation on selling floors even during nonworking time.
Significantly, our colleagues fail to note that the issue involved in the latter case arose
in a context of a no-solicitation rule, and that the no-distribution rule issue, posed in the
instant case, was not presented.
STODDARD -QUIRK MANUFACTURING CO. 619
applicable to "solicitation." The Supreme Court approved the
Board's resolution in both cases. To suggest, as our dissenting col-
leagues suggest, that the Supreme Court was oblivious to, or over-
looked, the distinction between the two cases either in the Republic
opinion itself or in the later cases where it reaffirmed its earlier hold-
ing is in our view an unwarranted deprecation of that Tribunal.'
4. The distinction is not fortuitous. It springs from the fact that
solicitation and distribution of literature are different organizational
techniques and their implementation poses different problems both for
the employer and for the employees. Heretofore, the difference in
result has been explained largely in terms of the employer's interests.
Thus, it has been noted that solicitation, being oral in nature, im-
pinges upon the employer's interests only to the extent that it occurs
on working time, whereas distribution of literature, because it car-
ries the potential of littering the employer's premises, raises a hazard
to production whether it occurs on working time or nonworking time.
See cases cited supra.
The validity of this consideration cannot be gainsaid. But because
it presents only one side of the employer-employee equation, it does
not wholly resolve the problem. Thus, if employer interests alone
were controlling, oral solicitation on plant premises could be denied
altogether for no one would deny that the strong feelings frequently
engendered by union solicitation inevitably carry over to some extent
from nonworking time to working time. And, on the other hand, the
employer's unquestioned right to make reasonable regulations govern-
ing the manner and volume of literature distribution in working areas
of the plant if such distribution were allowed could be invoked to
minimize any hazard to production raised thereby and, pro tanto,
would abate the need for complete exclusion.
It follows, therefore, that to solve the equation we must look also
to the countervailing employee interests involved in the respective
situations. The first requirement for an employee seeking to solicit
5 Our colleagues make much of the circumstance that in both Babcock & Wilcox and
United Steelworkers of America, the Supreme Court on occasion used the broad "generic"
term "solicitation " In obvious reference to both oral inducement and literature distribu-
tion. They argue from this premise that the Court regards both as being pari materia.
This argument, however, overlooks the fact that in neither of those cases was the dis-
tinction between the two techniques material to the ultimate issue presented. In the
former the question was whether the right of employees and nonemployees could be
equated In the latter the question was whether an employer forfeited his right to invoke
valid rules proscribing avenues of communication to his employees when he himself
utilized those avenues . The Supreme Court has in no case stated that oral solicitation
and literature distribution shall be controlled by identical rules. The only Board intima-
tion to this effect is in the broad statement in Walton of the presumptions concerning
"no-solicitation or no-distribution rules," upon which the Trial Examiner based his find-
ing in this case. And that broad statement , apparently equating "solicitation" and
"distribution of union literature ," was not necessary to the decision in that case, not
supported by any prior Supreme Court or Board holdings , and not explicitly analyzed or
justified in the Board 's decision . We therefore do not believe it should be given decisive
weight as a clear precedent on this issue, which the Trial Examiner 's reliance upon it
would in effect do.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his fellow employees is that he find a time and place appropriate for
such solicitation. In the Republic Aviation decision, 51 NLRB 1186,
1195, the Board pointed out that in the situation there presented, the
free time of employees on plant property was "the very time and
place uniquely appropriate . . . therefore" (quoted with apparent
approval at 324 U.S. 801, footnote 6). This is true, moreover, whether
the plant is located, as in Republic Aviation, in a somewhat remote
location, or in the heart of a city; and whether the plant itself and
its employee complement be large or small. Whatever the particular
situation, the difficulty of drawing employees aside for oral discussion
when they are hurrying to or from work or when they are engaged in
other activities away from the plant is obvious. Accordingly, unless
the right of employees to engage in effective oral solicitation is to be
virtually nullified, a limitation upon the employer's normal and
legitimate property rights is required. The scope of that limitation,
however, is to be determined by the nature of the need. Balancing the
respective rights, the working time versus nonworking time adjust-
ment has been evolved. The respective rights of both employer and
employees are thus accorded their proper weight.
It does not follow, though, that an identical adjustment is appro-
priate where distribution of literature is involved. The distinguish-
ing characteristic of literature as contrasted with oral solicitation-
and a distinction too often overlooked-is that its message is of a
permanent nature and that it is designed to be retained by the recipi-
ent for reading or re-reading at his convenience. Hence, the purpose
is satisfied so long as it is received."
This purpose, however, can, absent special circumstances, be as
readily and as effectively achieved at company parking lots, at plant
entrances or exits, or in other nonworking areas, as it can be at the
machines or work stations where the employer's interest in cleanliness,
order, and discipline is undeniably greater than it is in nonworking
areas. Granted that the distribution of union literature, even when
it is limited to nonworking areas, is an intrusion upon an employer's
acknowledged property rights, we believe that this limited intrusion
is warranted if we are to accord a commensurate recognition to the
statutory right of employees to utilize this organizational technique.
On the other hand, opportunity for effective distribution of union
literature is more easily afforded than opportunity for effective oral
solicitation and the intrusion upon the employer's property rights can
be correspondingly diminished without substantial prejudice to
6 Wholly distinguishable , of course , is the situation where an employee is asked to sign
an authorization card. Our dissenting colleagues exploit a semantic gambit by analogizing
the solicitation of signatures on authorization cards to the distribution of "literature."
This gambit , we respectfully suggest, is directed neither to the facts of this case nor to
the issue posed herein.
STODDARD-QUIRK MANUFACTURING CO. 621
employee rights.' Thus, in conformity with the Supreme Court
mandate in Babcock & Wilcox, the limitation on the employer's prop-
erty right in each situation is imposed only to the extent that it is
necessary for the maintenance of the employees' organizational right.
To sum up, we believe that to effectuate organizational rights
through the medium of oral solicitation, the right of employees to
solicit on plant premises must be afforded subject only to the restric-
tion that it be on nonworking time. However, because distribution
of literature is a, different technique and poses different problems both
from the point of view of the employees and from the point of view of
management, we believe organizational rights in that regard require
only that employees have access to nonworking areas of the plant
premises.'
5. Applying the foregoing principles in the instant case , we agree
with the Trial Examiner, as stated above, that the no-distribution rule
maintained by the Respondent is presumptively invalid on its face,
as applied to employees who may wish to distribute union literature,
since its reach is not limited to working time or to the working areas
of the plant. We also find that the presumption of invalidity is not
overcome by the testimony of Carson Butcher, Respondent' s vice presi-
dent, that the rule was adopted years ago for the purpose of
"keep [ing] down the litter . . • [and] fire hazards ... in the plant."
The mere assertion that a broad no-distribution rule has this purpose
hardly proves that it is actually "necessary" for the employer to
prohibit union handbilling by his own employees in nonworking areas
7It defines all experience to suggest , as our dissenting colleagues do, that in many
"small" plants it is virtually impossible for employees to pass out or receive union
literature anywhere except "at their work benches ." Surely, even in small plants, em-
ployees are not so chained to their work stations that they have no opportunity to dis-
tribute or receive union literature in some nonworking area at some time during the course
of a normal 8-hour day , e.g., luncheon breaks, restroom periods, coffee breaks, timeclock
punching, clothes changing, auto parking , and simple entry into and departure from
the plant.
In its practical effects, furthermore , the alternative "no-littering" rule our colleagues
espouse would be less clearly defined and, therefore, more onerous to apply. In terms of
the administration of the law , also, it would leave more vague questions for future Board
determination . For example, must the employer allow handbill distribution in an area
where some employees are always at work, even though others may be taking a break?
How many leaflets on the floor constitute " littering"? Is a total ban on distribution
warranted if there are rival factions of employees distributing literature , and one
group deliberately litters the working area with the other 's handbills ? If not, which
group forfeits its distribution privileges?
8 As in the case of no-solicitation rules ( supra, footnote 4 ), so here there are exceptions
to the normal rule. As Babcock & Wiicom establishes , nonemployee organizers can be
excluded even from an employer 's parking lot . Lumber camps and the like where em-
ployees are isolated from normal contacts , on the other hand , require a relaxation of
otherwise permissible restrictions inasmuch as in such cases "union organization must
proceed upon the employer ' s premises or be seriously handicapped " Republic Aviation
Corporation v. N.L R .B., supra, at 799; N.L.R .B. v. Lake Superior Lumber Corporation,
167 F 2d 147 , 150-151 ( C.A 6). Finally, where it is shown that the imposition or
enforcement of restrictive rules in this overall area flow not from the employer 's right
to protect his legitimate property interests , but rather from his desire to obstruct the
employees ' statutory right of self-organization , the immunity otherwise accorded him in
this regard is forfeited . FL R.B. v. Stowe Spinning Company, et al., 336 U.S. 226,
230-233 ; N.L.R.B . v. The Babcock & Wilcom Company, supra, at 111, footnote 4.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in order to "maintain production or discipline" (Babcock d Wilcox,.
supra). Such necessity has not been shown here.'
6. Respondent also argues that there is a place outside its premises
but near the main plant entrance where nonemployee organizers have
passed out handbills on several occasions to employees. Insofar as
this argument is intended to suggest that Respondent's own employees
are entitled to no greater rights in this regard than the nonemployee
organizers, the argument is vulnerable to the Supreme Court's pro-
nouncement in Babcock cf Wilcox, supra, at 112-113, that there is "a
distinction between rules of law applicable to employees and those
applicable to nonemployees" and that the "distinction is one of
substance."
Indeed, the Supreme Court's reversal of the Board's orders there
under consideration was predicated on the fact that the Board had
failed to make this distinction. Thus, in each of the three Board
cases which the Supreme Court there ruled upon, the Board had con-
cluded that, in refusing union organizers access to company parking
lots, "the employers had unreasonably impeded their employees'
organizational rights in violation of § 8(a) (1) of the National Labor
Relations Act," (supra, at 106). The Board predicated its con-
clusion on its LeTourneau decision which the Supreme Court had
approved and which affirmed the right of employees to distribute
literature on company parking lots. As in LeTourneau, so in the
Babcock c Wilcox cases, the Board ordered that the company parking
lots be made available for distribution of union literature, subject to
reasonable regulations by the employers.
As already noted, however, the Supreme Court held that the rules
applicable to employees were different from those applicable to non-
employees. The Court enunciated the rule that "an employer may
validly post his property against nonemployee distribution of union
literature if reasonable efforts by the union through other available
channels of communication will enable it to reach the employees with
its message. . . ." (Supra, at 112; emphasis supplied.) Applying
this rule to the facts of record, the Court held that the use of the
employer's property for nonemployee distribution of literature could
properly be proscribed "even under such reasonable regulations as the
orders in these cases permit" (supra, at 112). Implicit in this hold-
ing, we believe, is the corollary holding that employees, as contrasted
with nonemployees, would be entitled, subject to reasonable regula-
tions, to engage in such distribution. Ibid."
O The situation might be different and the presumption of invalidity of the broad rule
overcome if an employer could establish that the particular operations of the company,
e.g., a high explosives plant, made the distribution of any inflammable material a menace
No such proof, of course , was adduced or sought to be adduced here
io The Court of Appeals for the Third Circuit in N.L.R B. v. Rockwell Manufacturing
Company ( DuBois Division ), 271 F. 2d 109, upon which Respondent places major reliance,
glossed over this distinction . But see Tame-O-Matic, Inc v. N L R.B., 264 F. 2d 96, 100
(C.A. 7).
STODDARD-QUIRK MANUFACTURING CO. 623
7. Finally, we note our agreement with the Trial Examiner's ob-
servation, in footnote 13 of the Intermediate Report, that Respondent
has construed its no-distribution rule, on one occasion at least, as
banning mere solicitation in behalf of a union, as well as distribution
of union literature. Employee Tweedy was discharged on the pre-
text that he had violated the no-distribution rule when he merely
spoke to other employees on the plant parking lot after work, and
asked them to attend a union organizational meeting. We agree with
-the Trial Examiner that Tweedy did not, in fact, violate Respondent's
no-distribution rule on this occasion, although he apparently had a
batch of union membership application forms in his hand. Further-
more, even if he had actually been distributing union literature in
violation of the rule, his discharge for that reason would still have been
unlawful because the situation arose in the parking lot and not in
working areas of the plant.
However, because Respondent obviously reads into its broad no-
distribution rule an even broader meaning which makes it applicable
even to solicitation, we deem it appropriate to include a provision in
our remedial order directing Respondent not to restrict the right of
its employees to "solicit" for labor organizations whenever and wher-
ever they are on nonworking time. Even in the absence of a specific
allegation in the complain alleging promulgation or enforcement of
an unlawful "no-solicitation" rule, the propriety of such a remedial
provision is confirmed not only by Respondent's broad interpretation
and application of its no-distribution rule but also by the fact that
"there is a reasonable relation between the illegal act committed and
the forbidden activity." N.L.R.B. v. Firedoor Corporation of
America, 291 F. 2d 328, 331-332 (C.A. 2), cert. denied 368 U.S. 921.
In such a situation the Board is not precluded from enjoining viola-
tions other than those specifically proved or alleged. Ibid.
ORDER
Upon the basis of the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Stoddard-Quirk
Manufacturing Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership of any of its employees in Interna-
tional Woodworkers of America, AFL-CIO, or in any other labor
organization, by discharging any individual, or in any other manner
discriminating against any individual in regard to his hire, tenure of
employment, or any term or condition of employment.
(b) Interrogating any employee with respect to any employee's
activity, membership, or interest in any labor organization in a man-
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
(c) Promulgating, maintaining, enforcing, or applying any rule
or regulation prohibiting its employees, when they are on nonworking
time, from distributing handbills or similar literature on behalf of
any labor organization in nonworking areas of Respondent's property.
(d) In any manner prohibiting its employees, during nonworking
time, from otherwise soliciting their fellow employees to join or sup-
port International Woodworkers of America, AFL-CIO, or any other
labor organization.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Carroll Tweedy immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and make him whole in
the manner and according to the method set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records relevant to a determination of the amount of
backpay due, and to the reinstatement and related rights provided
under the terms of this Order.
(c) Post at its place of business in Clarendon, Arkansas, copies of
the notice attached hereto marked "Appendix A." 11 Copies of said
notice, to be furnished by the Regional Director for the Twenty-sixth
Region of the Board, shall, after being duly signed by an authorized
representative of the Company, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the said Company to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the said Regional Director, in :meriting, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply therewith.
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Ordei "
STODDARD-QUIRK MANUFACTURING CO. 625
MEIIIBERSS FANNING and BROWN, dissenting in part:
We disagree with the majority opinion only insofar as it holds that
an employee may lawfully prohibit his employees from distributing
union literature in working areas of a plant even though the employees
are on their own time.12
Our disagreement stems first from our belief that this holding of
the majority cannot stand as a matter of law, because it is in conflict
with Supreme Court decisions on the subject of employer no-solicita-
tion and no-distribution rules. As indicated by the majority, the
Board in the recent Walton case had occasion to review, interpret, and
"codify" the three key decisions by the Supreme Court in this area.13
And in the Walton case the Board stated that it interpreted these de-
cisions of the Supreme Court as establishing three rules of law with
respect to "no-distribution" rules, the first two of which were stated
as follows :
1. No-solicitation or no-distribution rules which prohibit union
solicitation or distribution of union literature on company prop-
erty by employees during their nonworking time are presump-
tively an unreasonable impediment to self-organization and there-
fore presumptively invalid both as to their promulgation and en-
forcement; however, such rules may be validated by evidence that
special circumstances make the rule necessary in order to maintain
production or discipline.
2. No-solicitation or no-distribution rules which prohibit union
solicitation or distribution of union literature by employees dur-
working time are presumptively valid as to their promulgation,
in the absence of evidence that the rule was adopted for a dis-
criminatory purpose; and are presumptively valid as to their en-
forcement, in the absence of evidence that the rule was unfairly
applied. [Emphasis supplied.]
Thus, under the Board's most recent interpretation of the law as
laid down by the Supreme Court in the Republic Aviation, Babcock
d Wilcox, and Nutone cases, no distinction was drawn between no-
solicitation and no-distribution rules applicable to employees," but
only a distinction as to whether either of the two types of rules is
applicable to nonworking time so as to be presumptively invalid or is
applicable to working time so as to be presumptively valid; and the
first rule of law which is in issue here states clearly that a prohibition
12 While the majority couches its holding and Order in terms of not permitting an em-
ployer to prohibit his employees from distributing union literature during nonworking
time only in nonworking areas , implicit in this is the necessary corollary holding that an
employer may lawfully prohibit such distribution in working areas at all times.
13 See footnote 1, supra.
14 The distinction drawn by the Supreme Court in Babcock & Wilcom between rules
applicable to nonemployees rather than employees, and as stated in the third rule of law
of the "codification" in Walton, is not in issue here In issue here only are employer
rules applicable to employees
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of either solicitation or distribution anywhere on "company property"
during nonworking time is presumptively invalid. The legal prem-
ise underlying this formulation is, of course, that the "working time"
test, in normal circumstances and in the vast majority of industrial
establishments, provides a proper accommodation between the respec-
tive employee and employer interests which the Supreme Court, in
Republic Aviation, characterized as "the undisputed right of self-
organization assured to employees under [Section 7 of] the Act and
the equally undisputed right of employers to maintain discipline in
their establishments." For we think it clear, as stated in Walton,
that the Supreme Court intended the "working time" test and no
other to apply to the distribution of union literature as well as to
oral solicitation in normal circumstances, as providing such proper
accommodation.
Thus, in Republic Aviation, where that case itself involved a broad
no-solicitation rule, and in the companion LeTourneau case Which
involved a broad no-distribution of literature rule, the Court not only
referred broadly to both rules as rules against "solicitation," but spe-
cifically stated that "We perceive no error in the Board's adoption of
this presumption" in a clear reference to the Board's application to
both cases of the Peyton Packing presumption of unreasonable
impediment and invalidity with respect to rules applicable to non-
working time.15 Moreover, While the Court held in the subsequent
Babcock & Wilcox case on the issue involved there that an employer's
naked property rights will ordinarily suffice to justify exclusion of
nonemployees from distributing union literature anywhere or at any
time on the employer's property, the Court stated at the same time in
an obvious reference to such distribution as well as literal oral discus-
sion by employees, that "No restriction may be placed on the employ-
ees' right to discuss self-organization among themselves [during non-
working time], unless the employer can demonstrate that a restriction
is necessary to maintain production or discipline. Republic Aviation
Corp. v. N.L.R.B., 324 U.S. 793, 803." [Emphasis supplied.] It
16 324 Ti S. 793 , 802-804 . As there set forth, the Peyton Packing presumption is as
follows ( as Italicized),
The Act, of course, does not prevent an employer from making and enforcing reason-
able 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 a discrimina-
tory purpose . It is no less true that time outside working hours , whether before or
after wal:, of duimg luucheon or rest periods, is an employee's time to use as he
wishes without unreasonable restraint , although the employee is on company prop-
erty. It is therefore not within the province of an employer to promulgate and
entorce a rule prolubitnig union solicitation by an employee outside of working
hours, although on company property Such a rule must be presumed to be an un-
,easonable impediment to self -organization and therefore discriminato r y in the ab-
sence of evidence that special circumstances make the rule necessary in order to
maintain production or discipline
STODDARD -QUIRK MANUFACTURING CO. 627
should further be noted that while the only issue in the subsequent
Nutone case, as stated by the Court itself, was whether there was
unlawful enforcement of an otherwise valid no-solicitation rule appli-
cable to employees' working time, there is no indication that the Court
was changing in any way the rules it had laid down in Republic Avia-
tion, and reaffirmed in Babcock & Wilcox, with respect to nonworking
time no-solicitation or no-distribution rules. In fact, here again as
in Republic Aviation-LeTourrneau, the Court described both the hand-
'billing involved in Nutone and the oral solicitation involved in the
,companion Avondale case by the broad generic term of "solicitation."
Accordingly, we are convinced, as the Board was in the recent Walton
case, and apparently as the Court of Appeals for the Fifth Circuit
also was in enforcing Walton, that the Supreme Court has indicated
very clearly that the working and nonworking time tests are the sole
-tests to be applied in determining whether either no-solicitation or
no-distribution rules applicable to employees are presumptively valid
,or invalid; 16 and therefore that the Board may not apply an addi-
tional'"area" test with respect to no-distribution rules, as the majority
would do here."
But even assuming arguendo no conflict with the Supreme Court de-
cisions on the precise issue posed by the majority holding, we disagree
most emphatically with the majority's implicit holding that an em-
16 Like the Supreme Court , the court of appeals in Walton described both the no-
solicitation and no-distribution rule involved in Walton as dealing with "solicitation," and
agreed with the Board 's Interpretation of the Supreme Court decisions that only the "work-
ing time" test applied to both. 289 F. 2d 177, 180-181.
17 The majority charges us with suggesting that the Supreme Court was oblivious to, or
overlooked, the factual oral solicitation -distribution of literature distinction between
Republic and LeTourneau either in the Republic opinion itself or in the later cases where
it reaffirmed its earlier holding, and that this represents an unwarranted deprecation of
that Tribunal We take the position rather, as we believe we have clearly indicated and
shown, that the Court was fully aware of the two types of rules involved but simply re-
garded both types as being in part, materie. We would also say rather that when the
majority attempts to draw a legal distinction between oral solicitation and distribution of
literature calling for different treatment , in the face of the Court' s contrary holding in
Republic and its reaffirmation of that holding in Babcock if Wilcox, the majority ' s charge
properly, rests on the other foot. Nor is it true, as alleged by the majority, that the
Supreme Court has in no case stated that oral solicitation and literature distribution shall
be controlled by the same rules. The Court did so state in Republic and restated it in
Babcock if Wilcox . Nor is it true , as alleged by the majority, that the Board ' s Interpreta-
tion of the Court decisions in Walton only contains an intimation to this eftect, which
was not necessary to that decision, not supported by any prior Supreme Court holdings,
and not explicitly analyzed of justified in the Board's decision, so that Walton is not
entitled to be given decisive weight as a clear precedent on this issue . First, as is patent
from our quotes of Walton above , Walton contains express and unequivocal statements
that the same rules govern both oral solicitation and literature distribution . Second, this
equating of the two was necessary to the decision in that case because the case involved
both a no-solicitation and a no-distribution rule Third , Walton is supported by the
Supreme Court holdings cited and explicated therein, and further explicated herein.
Accordingly , and in view of the facts that Walton was a unanimous full Board decision
including two members of the majority in the instant case , and this aspect of Walton was
,enforced by the Fifth Circuit without question , we are at a loss to understand why the
majority here apparently refuses to give Walton any, let alone decisive, weight in this
,case, and would in effect repudiate it herein.
662353-63-vol. 138-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer rule banning the distribution of union literature at all times
in working areas is not an "unreasonable impediment to self-organiza-
tion." The majority does not deny that literature distribution is
just as much within the protection of the Act as "oral solicitation"
where it is undertaken by employees in aid of union membership
drives or other projects involving "self-organization-collective bar-
gaining or other mutual aid or protection" (Section 7).18 This be-
ing so, the importance of protecting such distribution during all non-
working time is surely equal to the importance of protecting oral so-
licitation during all nonworking time to which the majority gives
continued recognition. The majority's new permissible ban on one
of these basic rights is based on an assumption that the right to dis-
tribute literature will be sufficiently protected if employees are still
allowed to do so during nonworking time in nonworking areas, such
as company parking lots, plant entrances or exits, or in other non-
working areas, presumably such as restrooms, change rooms, lunch-
rooms, and gateways. Assuming arguendo that this may be true in
some plants which have such elaborate nonworking area facilities that
are.reasonably adequate for literature distribution purposes, we dare
say that many plants, and particularly smaller ones, do not have
most of such nonworking area facilities, and such as they do have are
not reasonably adequate for literature distribution purposes. Indeed,
in many plants employees eat their lunch and take their other work
breaks right at their workbenches, so that practically all of their non-
working time in the plant is spent in their working area. Obviously,
therefore, the effect of the majority decision would be to deprive un-
told numbers of employees of their right under Section 7 to give and
receive union literature at their place of work for purposes of "self-
organization." 19 and this would constitute a serious impediment to
self-organization. Indeed, the majority's apparent total permissible
ban on the distribution of all types of union literature in work areas,
18 See the Board's decision in LeTourneau . supra, at 1260 , where it stated : "It must
also be noted that speech is not the only mode of communication by which self -organization
is effected , nor is it sufficient that this channel alone be free . Effective organization re-
quires the use of printed literature and of application and membership cards, and these
modes of communication are also protected by the Act "
16 See The May Department Stores Company d/b/a The May Company , 136 NLRB 797,
where the Board very recently stated.
The normal effectiveness of such channels stems not alone from the ability of a union,
to make contact with employees , away from their place of work , but also from the
availability of normal opportunities to employees who have been contacted to discuss
the matter with their fellow employees at their place of work . The place of work is
the one place where all employees involved are sure to be together. Thus it is the one
place where they can all discuss with each other the advantages and disadvantages
of organization , and lend each other support and encouragement Such full dis-
cussion lies at the very heart of the organizational rights guaranteed by the Act,
and is not to be restricted , except as the exigencies of production , discipline and
order demand. N.L.R B v. Babcock & Wilcox Co, supra.
STODDARD-QUIRK MANUFACTURING CO. 629
including union authorization and membership cards'20 probably
represents the most serious impediment they could place on this right,
for we can conceive of no greater destruction of the fundamental rights
guaranteed by the At than to deprive employees during their free
time of the opportunity to "sign up" their fellow employees in order
to obtain a Board election. The result will be that in the untold num-
bers of plants with really nothing more than work areas the employees
for all practical purposes will be unable even to obtain the necessary
"showing of interest" for a Board election in order to determine a
question of representation 21 And this may be equally true in plants
which do provide what might otherwise be deemed adequate nonwork-
ing areas. It is not uncommon for large numbers of workers to spend
their lunch and other work break periods in their working area not-
withstanding the existence of these facilities. As an example, many
bring their lunch and eat it at their places of work rather than in the
cafeteria. Such employees could, therefore, not be reached during
these work breaks for purposes of having them take or sign union
cards, and the nonwork areas would afford no opportunity for such
distribution. By their new ruling in this case our colleagues would
thus bring about a large-scale destruction of Section 9 of the Act as
well as Section 7.
Moreover, we believe that the majority's new permissible ban on the
distribution of union literature during nonworking time in working
areas also represents an unreasonable impediment to self-organization
not reasonably required to maintain production or discipline, and that
such a ban is therefore presumptively invalid rather than presump-
tively valid. While not too explicit, the majority seems to assert that
such a ban is not an unreasonable impediment and is justified by the
employer's right to maintain production or discipline, because litera-
ture distribution in work areas would cause littering 22 Such an as-
sertion is based on an unwarranted and unsupported presumption that
employees given union literature in a work area would throw it on the
floor or elsewhere in the production area in disorderly fashion, rather
than either pocketing such literature or depositing it in receptacles
r° Webster 's Dictionary definies "literature" in this colloquial sense as "any kind of
printed matter , as advertising" [emphasis supplied ], which would of course encompass
a union authorization ' or membership card.
21 Our colleagues would certainly concede that a necessary accompanying ingredient of
the distribution of authorization or membership cards to obtain an election is a certain
amount of oral explanation and solicitation . Do they seriously contend that this can be
reasonably and adequately accomplished in the type of plant with only an entrance-exit
and a restroom , when employees are either hurrying to or from work or attending to their
personal needs?
22 At least the majority points to no factor , other than the potential of littering, and we
can conceive of none, which could possibly interfere with these employer property rights
in any different or greater degree in the case of distribution than in the case of oral
solicitation.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in orderly fashion. We refuse to presume, as the majority does, that
the average rank-and-file worker is disorderly on his job rather than
orderly. In any event, there is another basically different approach
to this entire problem which we would adopt that does not depend
on any unnecessary presumptions that the average worker tends to
be either orderly or disorderly, and which we think demonstrates
clearly that the majority's new permissible ban on distribution is an
unreasonable impediment to self-organization not reasonably required
to maintain production and discipline. Under this approach, we
would give recognition to the possibility of littering if there is dis-
tribution of union literature in working areas even though during non-
working time, but we believe that the most reasonable and appropriate
solution to such a possibility is a "no-littering" prohibition rather
than a "no-distribution" prohibition.23 First, we would point to the
fact that the potential hazard to the employer's property rights which
the majority is concerned with lies in the possible littering rather than
the distribution itself. The distribution itself during nonworkng
time even though in a work area poses no potential threat to the
employer's property rights. Accordingly, it follows that in this situa-
tion an employer should be permitted to protect himself only against
the possibility of littering by the simple expedient of a no-littering
rule which would deal directly with the potential hazard involved.
And unlike a no-distribution rule, a no-littering rule would in no way
impinge upon the employees' Section 7 rights. Thus, a no-littering
rule would provide the most complete accommodation of the employ-
ees' "self-organization" rights and the employer's "property rights"
in this context, in that the employer's property right not to have the
working areas of his plant littered would be reasonably protected and
at the same time there would be no unnecessary infringement on the
employees' Section 7 rights to distribute union literature."'
23 In this connection , we find it strange indeed that the majority apparently presumes
that distribution in working areas during nonworking time would result in littering, but
that distribution in nonworking areas would not. We find this not only inconsistent, but if
we were to engage in one of these unnecessary presumptions , we would rather be inclined
to the view that employees would be more likely to litter in nonwork areas rather than
work areas . We do, however , agree that the majority is not warranted in presuming
that distribution in nonwork areas would cause littering By the same token, we assert
that such a presumption is not warranted with respect to a work area as well
u See Babcock & Wilcox, supra, where the Supreme Court stated that "Accommodation
between the two [conflicting rights] must be obtained with as little destruction of the
one as is consistent with the maintenance of the other "
We see no reason why a no-littering rule with appropriate penalties would not be effec-
tive in curbing the possibility , or for that matter even a presumption , of littering as a
result of distribution of union literature in working areas during nonworking time. But
even if such a rule were not effective in a particular case , the employer could then
promulgate a no-distribution rule, and the ordinary rebuttable presumption of invalidity
with respect to such rule could then be rebutted by the employer 's evidence that these
are "special circumstances" which make the rule necessary to maintain production or
discipline (Walton, supra ). Surely this is more reasonable than applying in advance a
presumption of necessity and validity to all such no-distribution rules, as the majority
would do, and which the majority apparently would make a conclusive presumption not
rebuttable in any way.
STODDARD-QUIRK MANUFACTURING CO. 631
In conclusion, we would say by way of broad summary that where,
as here, there are established rights protected by the Act, there is no
reason for limiting such rights generally where in any appropriate case
such limitation may be properly made on the basis of actual justifica-
tion shown.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees
in International Woodworkers of America, AFL-CIO, or in any
other labor organization, by discharging any individual, or in
any other manner discriminating against any individual in regard
to hire, tenure of employment, or any term or condition of
employment.
WE WILL NOT interrogate any employee with respect to any em-
ployee's activity, membership, or interest in any labor organiza-
tion in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the said Act.
WE WILL NOT promulgate, maintain, enforce, or apply any rule
or regulation prohibiting our employees, when they are on non-
working time, from distributing handbills or other literature in
behalf of any labor organization in nonworking areas of our
property. Insofar as our shop rule 21B so restricts the rights
of employees, it is hereby rescinded.
WE WILL NOT prohibit our employees, during nonworking time,
from otherwise soliciting their fellow employees to join or sup-
port International Woodworkers of America, AFL-CIO, or any
other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organiza-
tion, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL offer Carroll Tweedy immediate and full reinstate-
ment to his former or a substantially equivalent position, with-
out prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered by
reason of our discrimination against him.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become, remain, or refrain from
becoming, or remaining, members of any labor organization.
STODDARD-QUIRK MANUFACTURING CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act after discharge from the Armed Forces.
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, 714 Falls Building, 22 North Front Street, Memphis, Tennessee,
Telephone Number, Jackson 7-5451, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding , issued by the General Counsel of the National
Labor Relations Board (also termed the Board herein ), alleges that Stoddard-Quirk
Manufacturing Co. (also referred to herein as the Respondent or Company) has
discriminatorily discharged employee Carroll Tweedy in violation of Section 8(a)(3)
of the National Labor Relations Act, as amended ( 61 Stat. 136, et seq., 73 Stat.
519, et seq.; also referred to herein as the Act); and has by means of the discharge
and other conduct interfered with, restrained , and coerced employees in the exercise
of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a) (1)
of the Act. The Respondent has filed an answer which, in effect, denies the com-
mission of the unfair labor practices imputed to it in the complaint.'
Pursuant to notice duly served by the General Counsel upon each of the other
parties, a hearing upon the issues raised by the complaint and answer has been held
before Trial Examiner Herman Marx at Clarendon , Arkansas. The General Coun-
sel and the Respondent appeared through respective counsel, and International Wood-
workers of America , AFL-CIO, a labor organization , through a business repre-
sentative ; and all parties were afforded a full opportunity to be heard , examine and
cross-examine witnesses , adduce evidence , file briefs, and submit oral argument.
I reserved decision at the hearing on three motions, submitted by the Respondent,
which , in sum , seek dismissal of the complaint . The motions are denied on the
basis of the findings and conclusions set forth below. I have read and considered
the respective briefs of the General Counsel and the Respondent filed with me
since the close of the hearing.2
I The complaint is based on a charge filed with the Board by International Woodworkers
of America , AFL-CIO, on September 6, 1960. Copies of the charge and the complaint
have been duly served upon the Respondent.
2 The transcript of the hearing contains garbled or otherwise erroneous transcriptions
at a substantial number of points. One such inaccuracy is the attribution to me, at lines
3 to 8, inclusive , on page 401, of a statement made by a witness in the course of his testi-
mony To correct the record , the transcript is amended by deleting the phrase "Trial
Examiner MARX" at line 3, page 401, and substituting therefor the words "The
WITNESS " I am also erroneously quoted at line 18, on page 1 18, as using the words
"on one pretext" Instead of "in one context ," and the transcript is accordingly amended
at the specified place by deleting the phrase "on one pretext" and substituting for it the
words "in one context." Notwithstanding the inaccuracies , the record does adequately
STODDARD-QUIRK MANUFACTURING CO. 633
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY 'S BUSINESS ; JURISDICTION OF THE BOARD
The Company is a Wisconsin corporation ; maintains its principal place of business
in Cudahy, Wisconsin , and a branch plant and office in Clarendon , Arkansas; and
is engaged at the latter place in ,the business of manufacturing air-conditioner filters
.and wire and wooden crates. The issues in this proceeding involve only the Claren-
don establishment.
In the course and conduct of its business during the 12 months immediately preced-
ing the issuance of the complaint , the Company shipped products valued in excess
.of $50,000 from its business location in Arkansas to points outside that State. By
reason of its interstate shipments , the Company is, and has been at all times material
to the issues , engaged in interstate commerce within the meaning of the Act. Ac-
cordingly , the Board has jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, AFL-CIO (also called the Union herein),
is, and has been at all times material to the issues, a labor organization within the
;meaning of Section 2(5) of the Act.
- III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
The Company's Clarendon branch normally operates two production shifts, one
during the day and the other at night, and, in the aggregate, employs about 70 per-
sons. Its production operations are under the direction of a "general mill foreman"
named Harold Hill. Approximately 18 of the employees work in a sawmill on the
Clarendon premises and function under ,the supervision of Foreman Lonnie W. John-
son. The night shift personnel work under the direction of Supervisor Floyd Lock-
'ridge. Hill, Lockridge, and Johnson are subordinate to the Company's personnel
director, Herbert F. Puls, who is normally stationed at the Company's Cudahy office,
but is temporarily assigned to the Clarendon branch as its manager, and in that
capacity directs the operation of the latter establishment. As the parties stipulated
,at the hearing, Lockridge, Puls, Johnson, and Hill "possess and exercise the power
to hire and discharge, or ... effectively recommend the same," and are, and have
been at all times material to the resolution of the issues, supervisors within the
purview of the Act.
The Company has had in effect at the Clarendon branch since its establishment
some years ago (and at the Cudahy plant for a substantial number of years before
that) certain shop rules for employees. The regulations are printed in a pamphlet.
The only one that requires special mention here is rule 21B which provides: "Un-
authorized distribution of literature of any description on company premises is
strictly forbidden."
Tweedy entered the Company's employ at the Clarendon plant as a production
worker on July 24, 1959, and, with the exception of a voluntary separation of some
10 days in January 1960, was employed at the establishment until August 29, 1960,
when Puls discharged him under circumstances to be described later. Tweedy re-
ceived ia copy of the shop rules at the inception of his employment and has been
aware since then of the regulation dealing with prohibited distribution of literature.
The Union embarked upon a campaign to organize the Clarendon plant's em-
ployees on or about August 23, 1960, and to that end arranged or sponsored several
-meetings of employees away from the plant, and solicited them to sign cards which,
when executed, had the effect of designating the Union as the signatories' bargain-
ing representative. In all, some 49 such cards were signed.
Tweedy was active among the employees in the Union's organizational campaign,
attending all of its meetings, the first one about a week before his discharge; solicit-
ing signatures for the authorization cards; securing the execution of about a third
or a fourth of the total number signed; and speaking in favor of the organization
-to other employees.
reflect the material facts and issues and I thus deem it unnecessary , in the absence of a
motion by any of the parties , to amend the transcript in any other respects than those
specified above.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Puls assumed his managerial duties at the Clarendon plant within a few days after
the Union's organizational campaign began, arriving in Clarendon from Cudahy
on August 25. Two days later, he assembled substantially all Clarendon plant per-
sonnel and addressed them. He introduced himself; touched on various problems
of the management; stated that he had heard that employees were thinking of
unionization and that that "by itself was not necessarily alarming" to the manage-
ment, except to the extent that the employees "went too far"; asserted that in the event
of union representation a deserving employee would not be able to seek a wage
increase for himself alone, but that the Company would have to raise the wages of
,all if it increased those of one. At one point or another during the course of the
meeting, an employee (either Tweedy or another, according to Puls) asked whether
the Cudahy employees were represented by a labor organization, and Puls replied
in the affirmative, stating that the organization charged Cudahy employees an initia-
tion fee of $20 and dues of $4 per month. Tweedy, who was present, told Puls
and the others in the audience that the Union did not charge the Clarendon em-
ployees an initiation fee, whereupon Puls asked what its dues were. Tweedy replied
that these were $3 per month, but that he "would give $3 for a lot less than the
Union." Other employees made statements or asked Puls questions at the meeting
"concerning union activities." (The record does not detail such questions and
statements by the others.) 3
On August 29, 1960, Tweedy, whose work shift ended at 3 p.m., an hour earlier
than the rest of the day crew, went to the Company's parking lot, adjacent to the
sawmill, shortly before 4 p.m., for the purpose of inviting the sawmill employees,
as they emerged from the building after the end of their shift, to attend a meeting
scheduled by the Union to be held later that afternoon at a beach in the Clarendon
area. He was accompanied by another employee named DeGunion. While Tweedy
was in the parking lot, he held some 15 or 20 of the Union's authorization cards,
which are green in color, in his hand. A few were blanks, most having been signed
on one prior occasion or another. He had gone to his home to fetch them following
the end of his workday, before proceeding to the parking lot, in order to have them
available at the meeting. A few minutes before 4 p.m., Puls came out of the saw-
mill and passed "within five or ten feet" of Tweedy and looked at the latter. Puls
admittedly saw that Tweedy "was holding something in his hand," and what he saw,
I have no doubt, were the cards (although he refers to them in his testimony as
"green papers").
As the employees emerged from the sawmill following the end of their workday,
Tweedy and DeGunion notified them of the meeting and invited them to attend.
The sawmill foreman, Johnson, approached Tweedy and DeGunion while they were
engaged in talking to some of the employees, and asked DeGunion, who also had
some authorization cards in his hand, what he was holding. DeGunion replied
that they were "union cards," and, upon Johnson's request that he be permitted to
see a card, handed one to the foreman who looked at it and returned it to DeGunion.
There is conflict in the evidence as to whether Tweedy handed any of the cards
he held to any person while on the parking lot. Tweedy testified that he did not
do so Puls and Johnson gave testimony to a contrary effect. As the Respondent
claims that Tweedy handed a card or cards to one or more persons on the relevant
occasion, that this conduct constituted an unauthorized distribution of literature in'
violation of rule 21B of the shop rules, and that such a breach was a reason for
Tweedy's discharge, a resolution of the conflicting testimony is appropriate.
An ambiguous and self-contradictory vein runs through Johnson's testimony on
the subject under consideration He stated at one point that "they (Tweedy and
DeGunion) were trying to get them (employees) to take some of the cards,", but
soon thereafter he admitted that he saw neither Tweedy nor DeGunion hand any
card to any person on the occasion in question (except for the card DeGunion
handed him). This was followed by a claim that "they offered the card," but
moments later, he admitted that he did not see Tweedy offer a card to anyone In
short, Johnson's relevant testimony is so self-contradictory that it is valueless as a
basis for findings.
Nor am I able to place any greater reliance on testimony by Puls that shortly
after he passed Tweedy he looked back and saw the latter hand one of the "green,
papers" to another person. Puls' initial description of what he claims he saw
appeared to me to have a tentative and indefinite cast, as reflected in his testimony
8 Findings as to what was said at the meeting draw upon applicable portions of the testi-
mony of Tweedy and Puls. Their versions are not in complete accord, one touching on
matters that the other does not, but there is no material disharmony between the two
accounts, and I believe that a composite of both substantially reflects the features of the
meeting worth noting. The findings made are based upon such ii composite.
STODDARD-QUIRK MANUFACTURING CO. 635
that Tweedy "was at the time engaged in either handing it to him, or showing it
to him. I would say that he handed it to him-." Asked at this point to particu-
larize whether what Tweedy did was to "give something," or whether it was to
"show something," Puls shifted to firm assertion, stating that Tweedy "handed it
to the individual and the other individual was looking at it." From Puls' demeanor
and the text of his testimony, I received the impression that the shift was the product
of a spirit of advocacy, resulting from a realization by him that a mere showing of
one of the "green papers" by Tweedy would hardly constitute the "distribution of
literature," for which the Respondent maintains Tweedy was discharged
The shift was not the only indication of a disposition by Puls to serve his con-
venience rather than to relate the facts, for an evasive and self-contradictory vein
runs through his testimony at a number of related points. For example, asked at
one point what he thought the material held by Tweedy was, he testified that he
"would not hazard a guess then or now," but he conceded, subsequently, that the
"thought" that Tweedy was distributing union literature "might have entered my
mind"; and then, pressed to say whether he had in fact entertained the "thought," he
replied, "I believe so." Much the same disregard for candor regarding the
"thought" appears in testimony Puls gave with respect to a long-distance telephone
conversation he claims he had on the subject of Tweedy with his superior, Carson
Butcher, the Company's executive vice president, on August 29, shortly after he saw
Tweedy on the parking lot with the "green papers." According to both Puls and
Butcher, the former told his superior that he had observed Tweedy passing out
"literature." Butcher denied that anything was said about "union literature" in
the conversation, or that it occurred to him that such was the nature of the "litera-
ture"; and narrative versions of the alleged discussion by Puls and Butcher do not
quote the manager as telling Butcher that the "literature" was "union" in nature.
These accounts appear to me to be deficient in candor. It may be noted, in that
connection, that Puls was examined on the question whether he talked to Butcher
about his "thought" that the "literature" involved was "union" in character, and
he replied, "Not to the extent of asking for any guidance, or anything, but that was
my intention." This unresponsive answer led to additional interrogation whether
Puls talked to Butcher about "the fact" that Tweedy had given another person "union
literature." Puls replied that "I believe that I said that it could have been." In
other words, Puls testified, albeit with an evasive flavor, that he told Butcher in the
course of the conversation that the "literature" in question could have been "union
literature." This testimony is a substantial shift away from Puls' prior assertion
that he "would not hazard a guess then or now" about the nature of the "green
papers," and, in addition, contradicts Butcher's denial, in effect, that "union litera-
ture" was mentioned in the alleged telephone conversation. The fact is, as will
shortly appear from evidence not yet discussed, that Puls knew before he discharged
Tweedy a few hours after the parking lot incident that the "green papers" in Tweedy's
possession while he was on the lot were "union cards." Moreover, as will also
appear, the credited evidence of what Puls said at the time of the discharge sup-
ports a conclusion that Puls did not in fact see Tweedy give or offer any document,
whether termed a "union card" or "union literature" or merely "literature," to any
person on the parking lot. I credit Tweedy's testimony to the effect that he did not
,do so
The discharge took place in the plant's "clock room" on the night of August 29,
,some hours after Puls saw Tweedy with the "green papers" on the parking lot. The
room is used by night-shift employees as a lunch area during their lunch period which
extends from 8 to 9 p.m. Tweedy went there during the night-shift lunch period
-for the purpose of "passing the time" with members of the night crew while they
were at lunch. Puls came into the room with Lockridge shortly before 9 p.m., saw
Tweedy, addressed him, and a conversation ensued between Puls and Tweedy, in
the course of which the manager discharged Tweedy.
The General Counsel called three witnesses, including Tweedy, and the Respondent
an equal number, including Puls, to describe the conversation. As is so often, if
-not indeed invariably, the case with multiple versions of a conversation, there are
differences in content among the various accounts. It would serve no useful purpose
to trace all details of similarity or difference among them, for the only truly im-
portant issue raised by the relevant testimony that need be decided is whether Tweedy
admitted during the course of the conversaiton that he had distributed "literature"
while on the parking lot earlier that day, and whether such an admission led Puls
to discharge him.
Giving his version of the conversation, Puls, after quoting himself as asking
Tweedy what "he was doing there at this time," and receiving a reply from Tweedy
that he was "just visiting." Puls gave the following testimony:
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I did say, "Are you sure you are not passing out any more literature?" and
he said, "No, sir, I do not have any on me." I then said, "But you were passing
out some literature of some sort" (or words to that effect) "over at the mill this
afternoon, the mill building?" And he said, "Yes, I was handing out Union
cards." I said, "You are familiar with the rule book," and I believe at this
time I took it out of my pocket and turned to the'proper page, and walked over
to him, and showed it to him and read it to him, that as far as its being un-
authorized, distribution of unauthorized literature, it was strictly forbidden, and
I said, "In view of the fact that you have admitted passing it out, you do not
have to bother clocking in tomorrow. You are through." He said, "Now,
let's get this straight. I am being fired for passing out Union cards?," and I
believe my exact words to him at that time were, "You said that. I didn't."
He said, "What am I being fired for?" I said, "As I told you, you are being
fired for unauthorized distribution of literature."
Describing what passed between himself and Puls, Tweedy testified in part, as
follows:
It got pretty close to nine o'clock, 'I don't know the time exactly, Mr. Puls
came in and looked at me for a minute, and then he said, "Aren't you the fellow
who had the Union cards over at the sawmill this afternoon?", and I acid "Yes,
sir." He said, "You do not need to bother about clocking in in the morning."
I said, "You mean I am fired?" He said, "That is right," or words to that
effect. I asked him why he was firing me, on account of the Union, or what,
and he told me that he was firing me for distributing unauthorized literature
on the company premises. I could not understand what he was talking about,
and I kept on questioning him; I asked him a couple of more times and I got
the same answer, "distributing unauthorized literature on the company premises."
It will be observed that the material difference between the two versions set forth
above is that Puls quotes Tweedy as admitting that he had distributed "literature,"
in the form of "union cards," in the sawmill vicinity earlier that afternoon, making
the admission in response to an intimation, in interrogative form, that he had dis-
tributed "literature"; whereas Tweedy quotes Puls as asking him whether he was
"the fellow who had the Union cards over at the sawmill" [emphasis supplied],
and himself as replying in the affirmative to that question.
The clear weight of the evidence militates against acceptance of Puls' claim to
the effect that Tweedy admitted that he had been "passing out some literature "
For one thing, as I have found, Tweedy had not distributed literature on the parking
lot (whether or not one takes the view that union authorization cards are "litera-
ture"), and it thus seems quite implausible that he would agree that he had done so.
For another matter, each of the four witnesses, who, in addition to Tweedy and Puls,,
was called to give testimony regarding the conversation, supports Tweedy's account,
stating, in substance, that Puls asked Tweedy whether he had had union cards in the
mill area, and that Tweedy replied in the affirmative; and not one of the four sup-
ports Puls' claim that Tweedy admitted that he had distributed literature on the
parking lot. It is a significant fact that two of these witnesses, Floyd Lockridge and
James Henry, were called by the Respondent and gave testimony to the effect in-
dicated on their direct examination. Thus, the Respondent itself presented testimony
supporting Tweedy on the point at issue, and in effect contradicting Puls. It may
be noted, too, that both Henry and Lockridge, much like Tweedy, picture Puls as
discharging Tweedy after the latter agreed that he had had "union cards" in his
possession "at the mill" on the afternoon of August 29.4 In short, I credit Tweedy's
description, set forth above, of what passed between him and Puls in the clock room.5
'Floyd Lockridge testified under direct examination by the Respondent' s counsel:
"Then we (Lockridge and Puls) walked into the clock room and Mr. Puls asked Mr. Tweedy
if he had any cards, and Mr . Tweedy told him that he did not have any right then.
Mr. Puls said, 'But you did have over at the mill this afternoonT and Pedro (Tweedy)
said, 'Yes, I did ' " Then, according to Lockridge, Puls quoted the rule prohibiting
distribution of literature, and told Tweedy "that he might as well not come back the,
next day " Testifying in much the same vein, James Henry stated, under direct
examination : "Then, he (Puls) asked him (Tweedy) if he was the one that had the
cards at the mill in the afternoon, and Pedro (Tweedy) said, 'Yes.' Then, Dtr Puls
said, 'I see no alternative but to ask you not to come back to work in the morning'
Then, Tweedy asked him, 'Am I being fired for passing out Union cards"' and he (Pula)
said, 'No, you are being fired for passing out unauthorized literature."'
5An affidavit (Respondent's Exhibit No. 8) given by a former employee named Stan-
ley Renneker to the General Counsel quotes Puls as asking Tweedy if the latter "wasn't
the one passing out unauthorized literature at the mill that afternoon ," and Tweedy
STODDARD-QUIRK MANUFACTURING CO. 637
On the morning following Puls' conversation with Tweedy, the latter reported for
work to the plating department, his work place, at his customary starting time, but
his departmental supervisor told him to go to the office for his termination paycheck.
He did so, secured his check, and then asked Puls, whom he saw in the office
vicinity, for a written statement of the reason for his dismissal. Puls took the
position, in substance, that he was not required to give Tweedy such a statement and
would not furnish one. The manager, however, subsequently changed his mind
about the matter, and on the following day, August 31, 1960, wrote a letter, bearing
that date, to Tweedy, stating that "your discharge from this Company on Monday
night, August 29, 1960, was brought about because of your distribution of unauthor-
ized literature on Company premises, which distribution took place, by your own
admission, at approximately 3:45 p.m. of the same date"; and "is further based on
repeated acts of dangerous horseplay materially affecting the safety of your fellow
employees." Puls, it may be noted, had said nothing to Tweedy about "horseplay"
in the clock room, whether by way of giving a reason for the discharge or otherwise.
On September 1, 1960, the Union filed with the Board a petition seeking certifi-
cation as the representative of a unit of the Company's Clarendon employees. A
"consent election" was held on October 14, 1960, to determine the question of
representation. Of the 60 votes cast, 53 voted against the Union.
Between the date, in the latter part of August, when the Union's organizational
efforts began and the time of the election, Foreman Johnson questioned all of the
employees, numbering about 18, who worked under his direction in the sawmill,
regarding their attitude toward the Union. Speaking to one of these, Stanley Ren-
neker, in September or October, Johnson told the employee that he had heard rumors
in another building of the Company's plant that half of the sawmill employees "had
signed Union cards"; that he was "going to prove" that this was erroneous; and that
he was "taking down the names of all persons against it" (the Union) so that he
could "prove" the error; and he thereupon asked Renneker if he "was for or against"
the Union. Renneker replied that he "was against it," and at that point Johnson
wrote "something" on a piece of paper he was holding. It seemed to Renneker
that it was his name that Johnson wrote. The foreman spoke in much the same
vein about the end of August to another sawmill employee, Leo Miller, telling the
latter that he had taken it upon himself to ascertain the attitude of the sawmill
employees toward the Union, that the Company "did not know anything about it,"
and that he wished to know whether Miller "was for the Union or against the
Union." Miller replied that he was neither for nor against the organization, and
Johnson asserted that Miller "had to be one way or the other." While talking to
Miller, Johnson had in his hand "a paper with a list of names on it," and Miller
as replying, "No, sir, I was passing out Union cards." Renneker was called by the
General Counsel. He gave no evidence on his direct examination relating to the
clock room conversation, the burden of his direct testimony dealing with an occasion
when his supervisor, Johnson, questioned him regarding his attitude toward unionization.
There is some discrepancy between the affidavit, which was produced by the General
Counsel upon the Respondent's request, as to whether Lockridge, in fact, wrote down
Renneker's name at the time of the interrogation. The Respondent offered the affidavit,
and it was my intention to receive it as a prior self-contradictory statement with regard
to the interrogation incident, but in receiving it, I misspoke myself and stated that "so
much of the affidavit (would be received) that purports to outline what happened on the
occasion when Tweedy was told he was fired." That portion of the affidavit obviously is
not admissible as a prior self-contradictory statement since Renneker gave no prior testi-
mony on the subject. The General Counsel called the mistake to my attention, as the
transcript shows, and registered an appropriate objection to receipt of the portion of the
affidavit in question. The record does not show that I took any corrective action The
General Counsel's position is so clearly well taken that I think it unlikely that I would
have persisted in the error after it was called to my attention. It is possible that the
record is garbled, as it is at a substantial number of places, but I cannot at this point
determine, either from the context or from my recollection, that such is the case. Be that
as it may, the General Counsel in his brief, renews his objection to receipt of the affidavit,
and seeks its total exclusion. The objection is overruled because of the discrepancy re-
lated to the interrogation incident, noted above. Receipt of the portion dealing with the
clock room conversation was incorrect, but I see no useful purpose in modifying or alter-
ing whatever ruling on the subject the transcript reflects, for whether or not the affidavit,
and a blanket statement by Renneker under cross-examination that its statements "are
true," be taken into account, the clear weight of the evidence, I have no doubt, supports
Tweedy's version of his conversation with Pule. One should not forget, in that connec-
tion, that the Respondent itself presented testimony, through Henry and Lockridge,
supporting Tweedy 's account set out above.
B38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked the foreman if his name was on the list. Johnson inquired, "Do you want
it on there?" and Miller replied that he did. Johnson thereupon added Miller's
name to the list .6
B. Discussion of the issues and concluding findings
Three issues are presented for resolution: (1) Whether Tweedy was dismissed
because he engaged in union activity, and thus was unlawfully discharged; (2)
whether Johnson's interrogation of employees was unlawful interference with the
exercise of rights guaranteed employees by Section 7 of the Act; and (3) whether
the Respondent, to quote the complaint, "has promulgated and enforced a rule
prohibiting its employees from distributing literature on its premises during their
non-working hours," thus interfering with the exercise of Section 7 guarantees.
With respect to the first issue, as is evident from Puls' testimony, as well as his
letter to Tweedy, the Respondent claims that Tweedy was discharged because (1)
he engaged in acts of horseplay while at work, and (2) he distributed "literature"
on the parking lot on the afternoon of August 29, without prior authorization by
the management.
It is undisputed that Tweedy engaged in some acts of horseplay during his em-
ployment, although there is conflict in the evidence as to the number of such
instances. About a year before his discharge, as he conceded, using a match, he lit
an apron string worn by an employee named Guthrie (who, according to Tweedy's
uncontradicted testimony, had lit Tweedy's apron string); and, approximately a year
before his dismissal, too, Tweedy, as he testified, placed a lighted cigarette under
the seat of oily pants worn by an employee named Ward? Also, some 4 or 5
months before his dismissal, Tweedy operated a plant vehicle, described in the
record as a "hoister," with another employee sitting on the vehicle's forklifts, and
Lockridge, who was then Tweedy's supervisor, reprimanded Tweedy for the incident.
As a preface to resolution of the question whether any acts of horseplay by
Tweedy were a factor in his discharge, one may note, without condoning such con-
duct, that there is good reason to believe that the Clarendon plant management
did not take as serious a view of the matter before Tweedy's dismissal as the Com-
pany now claims. It is evident from the testimony of Hill, the top production
supervisor after the plant manager, that pranks of the type in question were common
among young male employees (like Tweedy, who is 22 years old), and this con-
tributes support to testimony by Tweedy that in the early period of his employment
(on the night shift) "the foreman and everybody else would come behind you and
set you on fire." 8 Significantly, in that connection, there is no evidence that any
employee was discharged for such conduct prior to Tweedy's dismissal; and it is
noteworthy that Hill testified that he could not recall warning Tweedy about any
acts of horseplay apart from an admonition on one occasion that Tweedy was
driving the "hoister" too fast .9 To be sure, Lockridge, as noted earlier, did rebuke
°There is good reason to believe that Johnson wrote down the names of other sawmill
employees , in addition to those of Miller and Renneker . At one point, the foreman testi-
fied that he "probably did" write down the names of all those he interrogated, but he
equivocated about the matter , stating soon thereafter that "I don't say that I did or
I did not" ; and, after that, that he does not know whether he did so ; and at an earlier
point that he "might have put the names down and checked them off the list ," but does
not "think that I did." In any case , whether he actually wrote the names of any of
those interrogated is not decisive of the issue whether his acts of interrogation were
unlawful.
*According to an employee named William Friday, about a year before Tweedy's
discharge , the latter on one occasion lit or singed Friday's apron string with "a hot
iron" ; and , on another, lit a rag in Ward's pocket . Tweedy denied that he burned
Friday's apron string; and , in response to interrogation about Ward, testified, as de-
scribed above , that he put a lighted cigarette under Ward's trouser seat . It may be that
Tweedy and Friday are describing the same incident involving Ward, but whether that is
so need not be decided , nor need the other conflict between the two be resolved , for the
incidents described by Friday , if they occurred , took place long before Tweedy's discharge
and, as will appear in greater detail, had no connection with his dismissal . It may be
noted , in passing, that it does not even appear , with any clarity at least, that the Company
had any knowledge , prior to Tweedy's dismissal , of the incidents described by Friday.
e Hill testified that "a lot" of young male employees engaged in acts of horseplay of
the type attributed to Tweedy , and that he received complaints from supervisors about
"a lot" of them.
6 Notwithstanding his testimony that he could not recall ever warning Tweedy about
any acts of horseplay except for the admonition about fast operation of the "holster,"
STODDARD-QUIRK MANUFACTURING CO. 639
Tweedy on one occasion some months before the dismissal for the way in which he
operated the "hoister," but I find no persuasive force in a claim by Lockridge to the
effect that after he became night supervisor, on February 15, 1960, he reprimanded
Tweedy "several times on different acts of horseplay." Asked by the Respondent's
counsel to describe "some of these acts of dangerous horseplay that Tweedy was
involved in," Lockridge testified: "Well, I do not remember exactly what was
happening. I know when I first took over the supervision, there was some fire
setting (by Tweedy and another employee) going on, and I tried to get this stopped,
and could not do it, but I do not remember the exact acts." One would think that
if Tweedy engaged in "dangerous horseplay" while employed under Lockridge's
supervision, the latter would have had some recollection of the "acts" beyond a
generalization that Tweedy and another employee had engaged in "fire setting," and
would have been able to take supervisory action "to get this stopped." Particu-
larly bearing in mind that the evidence does not describe any specific act of "fire
setting" by Tweedy after Lockridge became night supervisor, I am unable to attach
any weight to Lockridge 's vague generalization imputing such conduct to Tweedy;
nor, in my judgment, is Lockridge's testimony of sufficient weight to warrant a find-
ing that he reprimanded Tweedy beyond the one occasion, some 4 or 5 months
before the discharge, when Tweedy operated the "hoister" with another employee
sitting on its forklifts.
In any case, whether or not one believes Lockridge's relevant testimony, or that
the management took as serious a view of the acts of horseplay when they occurred
as it now claims, the evidence establishes in abundant measure that such conduct
had no connection with Tweedy's discharge. One may note, in that connection,
that the specific acts involving burning materials took place about a year before
the discharge; that the "hoister" incident for which Tweedy was admonished by
Lockridge, occurred about 4 or 5 months before the dismissal, and that the alleged
admonition by Hill that Tweedy was operating the "hoister" too fast was given,
according to Hill, about 3 months prior to Tweedy's termination. In other words,
the acts of horseplay imputed to Tweedy by the management, with the possible
exception of the alleged fast operation of the "hoister" several months before the
dismissal, were stale at the time of the discharge, and that of itself raises a sub-
stantial doubt, to say the least, that the pranks had any connection with Puls' de-
cision to discharge Tweedy.io
Any doubt about the matter is dissolved by the circumstances of the dismissal. A
basic fact that stands out, in that regard, is that Puls admittedly said nothing to
Tweedy about horseplay at the time of the discharge, let alone telling Tweedy that
he was discharged for such a reason. The very terms of the conversation between
Puls and Tweedy in the clock room, whichever of the versions one chooses to accept,
establish that Tweedy was dismissed for another reason; and, indeed, evidence of
that conversation presented by the Respondent itself, through the testimony of
Henry and Lockridge, warrants a conclusion that Tweedy's possession of "union
cards" on the parking lot on the afternoon of August 29 was the precipitating cause
of his discharge. What is more, the tenor of the letter from Puls to Tweedy, par-
ticularly when considered in the light of the conversation in the clock room that
preceded it, indicates that the claim that Tweedy's dismissal was based, in part, "on
repeated acts of dangerous horseplay" was an idea that occurred to Puls after the dis-
charge took place. Significantly enough, in that connection, the letter first states
Hill subsequently , giving no details, gave a blanket affirmative reply to a question by
Respondent's counsel whether he had ever told Tweedy "that if he continued to engage
in these acts of horseplay , . . . he would be discharged " This does not quite jibe with
Hill's testimony that he could not recall any warning to Tweedy except the admonition
noted above, and does not, in my judgment , preponderate over a denial by Tweedy that
Hill ever reprimanded him. I do not credit Hill's claim, in effect , that he threatened to
discharge Tweedy.
'°Henry testified that on one occasion (probably the summer of 1960, according to
Henry, who appeared to be uncertain when the incident in question occurred ), he saw
Tweedy attempting to drive a "holster " into the "clock room " No supervisor was pres-
ent, Henry stated, nor did he report the incident to one. There is no evidence that the
incident ever came to the Company's attention before Tweedy 's discharge, and no basis
in the record for any inference that it had anything to do with the dismissal Indeed,
the fact that this testimony is presented , without any material link to the dismissal,
supports a conclusion that the Respondent has resorted to the device of dredging up from
Tweedy's work history incidents that had no connection with his termination to give it
some color of legality. Such a procedure bespeaks a disposition to conceal the real
motivation for the dismissal and adds weight to an inference that the motive was unlawful.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Tweedy's discharge "was brought about because of your distribution of un-
authorized literature on Company premises," and then goes on to say that the "dis-
charge is further based on repeated acts of dangerous horseplay" (emphasis sup-
plied). I am convinced, in short, that the claim that acts of horseplay by Tweedy
were ia factor in his discharge is but an afterthought improvised by the Company
after Tweedy was dismissed. The fact that the Respondent has resorted to such
an a posteriori improvisation bespeaks a design to conceal an unlawful motive for
the discharge.
The real motivation emerges from the credited evidence of the conversation in
the clock room on the occasion of Tweedy's discharge. Puls admittedly had ob-
served Tweedy holding the "green papers" in his hand in the parking lot a few hours
earlier, and almost at the inception of his remarks in the clock room, the manager
inquired of Tweedy whether he was not the individual who had had "union cards" in
his possession "over at the sawmill this afternoon." The very tenor of the inquiry
attests to the fact that either at the time Puls observed Tweedy with the "green
papers" in the parking lot or at some point between that time and the inquiry, the
manager formed either a belief or suspicion that the "green papers" were "union
cards" or, in other words, cards used by the Union to secure its designation by
employees as their bargaining representative. Moreover, in the context of circum-
stances, particularly the fact that Puls saw Tweedy with the cards only a matter of
minutes before day-shift employees were due to emerge from the plant, the man-
ager's inquiry was, in my judgment, more than a mere question whether Tweedy
had had the cards on the parking lot; what it was, I am persuaded, was an intimation
by Puls to Tweedy, in interrogative form, that the latter had brought authorization
cards of the Union to the parking lot in order to solicit employees to sign them.
The discharge, as the evidence (including testimony by the Respondent's witnesses,
Henry and Lockridge) establishes, came practically immediately after Tweedy's
admission, in reply to Puls' inquiry, that he had had authorization cards of the
Union in his possession on the parking lot, and thus, in the light of the sequence
of events and the content of the clock room conversation, I am led to the conclu-
sion, and find, that Tweedy was discharged because Puls believed or suspected that
Tweedy (who, it may be recalled, had evidenced more than passive support for
the Union on the occasion when Puls addressed the employees) had come to the
parking lot with authorization cards of the Union in order to solicit signatures of
employees for them.
The reason for the dismissal was manifestly unlawful, and by discharging Tweedy,
the Respondent discriminated against him in violation of Section 8(a)(3) of the
Act, and interfered with, restrained, and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the
statute.li
As regards the propriety of Foreman Johnson's conduct, the Respondent appears
to stress the fact that he did not harness his interrogation of employees with threats
to them. This, it seems to me, ignores the coercive thrust of the statement he made
to Renneker that he was recording the names of those opposed to the Union, and
of the fact that he either listed or appeared to list the names of at least some of
those interrogated. Moreover, the circumstance that Johnson made no threats is
not controlling, for Section 8(a)(1), as is sometimes overlooked, forbids inter-
ference with, as well as restraint and coercion of, employees in the exercise of
their Section 7 guarantees. Nor am I able to accord operative weight to the fact
that the foreman told any of those interrogated (or all, according to his testimony)
that his inquiries were a project of his own, and not of the Company, and that the
employees did not have to reveal their attitude toward the Union if they chose
not to do so. The controlling fact is that Johnson was the supervisor of each em-
ployee he questioned, with power to control the work of each and to make effective
recommendations regarding their tenure, and I think it obvious that the employees
so situated could reasonably believe that his voice was that of management, not-
withstanding his statement to them that the census he,was taking was an affair of
his own. Such a belief would particularly be justified after Tweedy's discharge,
for the dismissal could reasonably be construed by employees as signifying not only
an interest by the Company in their attitude toward unionization, but as a signal
that it was prepared to resort to drastic measures to stamp out activity on behalf
of the Union. Responsibility for Johnson's conduct is, in short, imputable to the
Respondent. In sum, by Johnson's interrogation of employees, the Respondent
"The discharge was unlawful if it was motivated by no more than the fact that
Tweedy had authorization cards of the Union in his possession on the parking lot, and
not, in addition , by a belief or suspicion by Pula that Tweedy had brought the cards there
to solicit signatures for them.
STODDARD-QUIRK MANUFACTURING CO. 641
interfered with the free exercise of employees' Section 7 rights, and thereby violated
Section 8(a)(1) of the Act.
The remaining question is whether the Company has unlawfully "promulgated and -
enforced a rule prohibiting its employees from distributing literature on its premises
during their non-working hours." The regulation in question is embraced in rule
21B of the shop rules, which, plainly, by reason of its breadth, and by the Company's
interpretation, as is evident from the Respondent's attempted use of rule 21B to
justify Tweedy's discharge, applies to union literature.
It is important to bear in mind that the issue, as framed by the pleadings, does not
involve the validity of the regulation as a prohibition against distribution of litera-
ture by employees during working time, nor distribution by individuals who are not
in the Company's employ, such as, for example, business agents employed by a labor
organization. Hence, this case is not concerned with the principle that "rules which
prohibit union solicitation or distribution of union literature by employees during
working time are presumptively valid as to their promulgation in the absence of evi-
dence that the rule was adopted for a discriminatory purpose; . . . and are pre-
sumptively valid as to their enforcement, in the absence of evidence that the rule
was unfairly applied" (Walton Manufacturing Company, 126 NLRB 697, 698, citing
N.L.R.B. v. United Steelworkers of America, CIO (Nutone, Inc.), 357 U.S. 357,
and Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793). Nor are we con-
cerned here with the doctrine (also expressed in the Walton case, relying upon
N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S 105) that "rules which pro-
hibit union solicitation or distribution of union literature by nonemployee union
organizers at any time on the employer's property are presumptively valid, in the
absence of a showing that the union cannot reasonably reach the employees with
its message in any other way, or a showing that the employer's notice discriminates
against the union by allowing other solicitation or distribution."
The issue here is controlled by the principle, which was also invoked in the Walton
case (upon the authority of the Supreme Court's holding in Republic Aviation),
that "rules which prohibit union solicitation or distribution of union literature on
company property by employees during their nonworking time are presumptively an
unreasonable impediment to self-organization, and are presumptively invalid both
as to their promulgation and enforcement; . (but) may be validated by evi-
dence that special circumstances make the rule necessary in order to maintain pro-
duction or discipline." It will be observed that the applicability of this doctrine does
not turn upon a question whether employees may reach their fellows by solici-
tation or distribution away from the employer's premises, and thus the issue
here is not controlled by evidence that the Union, whether through an organizer in its
employ or through an employee of the Company, has been able to distribute lit-
erature to the employees on public roads adjacent to points of access to the plant.
Measured by the applicable doctrine, it is clear that rule 21B has an invalid reach,
for there is no substantial evidence that "special circumstances" make a prohibition
of distribution of union literature by employees during nonworking time "necessary"
for the maintenance of production or discipline. Butcher testified that the reason for
rule 21B is to "keep down litter around the plant," and because distribution of
literature "interferes with production," but, this, it seems to me, has the earmarks
of abstract generalization and assumption, for there is no evidence that any distri-
bution of literature has ever caused any "litter" at the Clarendon plant, or interfered
with any production activity there. Nor is it shown how the distribution of literature
by an employee to others, particularly outside the plant buildings, as in the parking
lot, would interfere with production.12 Moreover, so far from rebutting the pre-
sumptive invalidity of the rule in issue, the evidence actually establishes that the
Respondent is prepared to use, and has used, rule 21B as an excuse to inhibit legiti-
mate union activity by employees, and as an instrument of reprisal against them,
and, indeed, to that end, has resorted to distortion of its terms. This is evident from
'-'According to Butcher, Puls reported to him in the alleged telephone conversation, de-
scribed earlier, that he "had seen (Tweedy) handing out something" in the parking lot on
the afternoon of August 29 Butcher was hard put to it to explain how the conduct im-
puted to Tweedy interfered with production. He testified that the alleged act "could"
have constituted such interference, and then launched into speculation that "(ilt was
taking up time, if it was during our time and on our premises, it could interfere with
the men going on to duty, it would delay them getting to work stopping to hand them
literature, and even stopping to give those going off work could interfere with and delay
those going to work." There is no evidence that what Tweedy did on the parking lot,
whether or not one believes Puls' claim that Tweedy handed one of the "green papers"
to another, had any impact on production or any of the consequences that Butcher stated
"could" have taken place.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the very circumstances surrounding Tweedy's discharge, for he distributed no litera-
ture in the parking lot, did not admit that he had done so, and was discharged, upon
his admission that he had had "union cards" in his possession on the parking lot,
because Puls, as found above, believed or suspected that Tweedy was on the parking
lot to solicit signatures for the cards; yet, when Tweedy asked the reason for his
dismissal, Puls charged him with distribution of literature in violation of rule 21B.
It is noteworthy, too, that in his testimony Butcher gave a tortured construction to rule
21B, palpably one that would inhibit legitimate union activity during nonworking
time, for he testified that he would regard as "distribution" an act of an employee
in handing to another, on the Company's premises, without its permission, "a union
card for the purpose of getting (the latter employee's) signature and regaining it
immediately." 13 As a final comment on rule 21B, I note, upon the long established
authority of N.L.R.B. v. LeTourneau Company of Georgia, 324 U.S. 793 (decided
jointly with the Republic Aviation case), that rule 21B is not redeemed so far as it
reaches distribution by employees during nonworking time by the fact that it pro-
hibits "unauthorized" distribution.
I find, in sum, that by force of the existence and application of rule 21B, the
Company maintains and enforces a rule at its Clarendon plant prohibiting employees
there, without lawful justification, from distributing on its premises literature of, or
on behalf of, any labor organization; and that by maintaining and enforcing the
rule, the Respondent has abridged rights guaranteed employees by Section 7 of
the Act, thereby violating Section 8 (a) (1) 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 operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
The Respondent's unfair labor practices go to the heart of basic rights guaranteed
employees by Section 7 of the Act.14 The rights involved have a close relationship
to other rights guaranteed by Section 7. Because of the nature of the unfair labor
practices found above, it is reasonable to conclude that the Respondent will in-
fringe upon such other rights in the future unless appropriately restrained. There-
fore, I shall recommend an order which will have the effect of requiring the Re-
spondent to refrain in the future from abridging any of the rights guaranteed em-
ployees by said Section 7.15
Having found that the Respondent discharged Carroll Tweedy on August 29, 1960,
in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the
Respondent offer him immediate and full reinstatement to his former or a substan-
tially equivalent position,16 without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of pay he may have suffered by reason
of his discharge by payment to him of a sum of money equal to the amount of
wages he would have earned, but for the said discharge, between the date of his
dismissal and the date of a proper offer of reinstatement to him as aforesaid; and
is The evidence , in my judgment , warrants a holding that by force of the construction
and application the Respondent has given rule 21B, it maintains and enforces an unlawful
rule prohibiting employees from soliciting other employees on the Company' s premises,
during nonworking time, to support any union or to engage in any union activity. I make
no such finding because the issue litigated , as evidenced by the applicable allegations of
the complaint, is whether the rule prohibiting distribution by employees during non-
working time is valid
14 N L.R B. v. Entwistle Mfg Co., 120 F. 2d 532 (C.A 4).
15 May Department Stores d /b/a Famous -Barr Company v. N L R B., 326 U S. 376;
Bethlehem Steel Company v. NLRB., 120 F 2d 641 (CAD C.)
16 In accordance with the Board's past interpretation, the expression " former or a sub-
stantially equivalent position" is intended to mean "former position wherever possible,
but if such position is no longer in existence , then to a substantially equivalent position."
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827
YOUNG SPRING AND WIRE CORPORATION 643,
that the said loss of pay be computed in accordance with the formula and method pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, to which the
parties to this proceeding are expressly referred.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Stoddard-Quirk Manufacturing Co. is, and has been at all times material to
this proceeding , an employer within the meaning of Section 2(2) of the Act.
2. International Woodworkers of America, AFL-CIO, is, and has been at all
times material to this proceeding , a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminatorily discharging Carroll Tweedy, as found above, the said
Company has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the said Company
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Young Spring and Wire Corporation and Louis Reeves and
William Mitchell . Case No. 13-CA-3844. September 18, 1962
DECISION AND ORDER
On April 21,1961, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. The General Counsel filed
a brief in support of the Intermediate Report.
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 Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following addi-
tions and modifications.'
1 We find no merit in Respondent 's contention that the Trial Examiner was biased -
However , we do not adopt the Trial Examiner 's hyperbolic comment , albeit in a facetious
vein, that , in view of the widespread gambling activities at Respondent 's plant. it might
be described as a "gambling establishment " rather than as an automotive parts factory.
138 NLRB No. 76.
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