Sunbeam Corp.

National Labor Relations Board - Board Decisions

Aug 19, 1970

184 N.L.R.B. 950 (N.L.R.B. 1970)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunbeam Corporation and James A. Moore, Jr.
Case 13-CA-8117
August 19, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, BROWN, AND
JENKINS
On May 19, 1969, Trial Examiner Stanley Ohl-
baum issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, the
General Counsel and Respondent filed exceptions
to the Decision and supporting briefs, and the
Respondent filed an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following
modifications.
The Trial Examiner found that Respondent did
not violate Section 8(a)(3) and (1) of the Act
when it discharged James A. Moore because
Moore's activity giving rise to discharge was not
concerted activity. While we agree with the Trial
Examiner that Respondent in this respect did not
violate Section 8(a)(3) and (1) of the Act, we base
our conclusion on the following considerations.
In October 1966 Moore was told there was an
opening for him as a leadman in Department 133.
On the day scheduled for transfer, he was told there
was no opening in that department, but that he
could transfer as a leadman to Department 437.
After Moore went to Department 437, he learned
that a rank-and-file employee working full time as a
leadman in Department 133,1 thus indicating there
was a leadman position he could have filled. He
filed a grievance based on the Employer's failure to
transfer him to Department 133. Moore was unsuc-
cessful through the second step of the grievance
machinery and on February 13, 1967, the Em-
ployer gave its final answer denying the grievance.
Moore thereupon requested a meeting with
Respondent President Gwinn and was told that the
grievance procedure set forth in the collective-bar-
gaining agreement was the proper method fox
resolution of complaints. Union Representative
Janas and an official of the Respondent met Moore
on March 10, 1967, and told him that Gwinn could
not speak to one employee of a working force of
2,400. Although they again discussed Moore's com-
plaint, no change in the ruling was made. On Au-
gust 11, Moore wrote to Gwinn again. Apparently
failing to secure a satisfactory response, Moore
then composed the open letter to President Gwinn
detailing the nature of his various grievances; he ac-
cused the management of displaying a hostile at-
titude toward him and harassing him in an effort to
force him to quit his job. In this letter Moore, warn-
ing that time was of the essence, again demanded a
meeting with President Gwinn as the only alterna-
tive to his presenting his grievance to his "co-wor-
kers and the public [t]o solicit their support for fail
and equal settlement . . . ." Moore incorporated
this letter in a leaflet or "petition" addressed to
"Employees of Sunbeam Corporation and
Purchasers of Sunbeam Appliances" in which he
made numerous assertions and accusations reflect-
ing on the honor, honesty, and intelligence of both
company and union officials. The leaflet closed
with the following statement and a list of the or-
ganizations, officials, and other persons to whom
copies were being sent:
On October 24, 1967, 1 shall march in protest
of the conditions here at Sunbeam Corpora-
tion. This will be an all day protest march in
front of the company, 5400 West Roosevelt
Road, Chicago, Illinois.
Around the end of September 1967, Moore had
some 3,500 copies of the so-called petition made.
On October 2, Moore passed a copy of the "peti-
tion" to employee Thomsen and asked her advice
with respect to it. The distribution and discussion
both occurred on working time. Later Thomsen in-
formed Moore that "the front office was in ar
uproar over the petition" and that she had beer
called to the personnel department where she was
questioned about the document and forced to sur-
render it. On October 3, 1 hour before his 7:3C
a.m. reporting time, Moore began a mass distribu-
tion of the "petition" on a public sidewalk outside
the plant. About 11 a.m. Moore was instructed tc
report to the personnel office at 3:45 p.m. that
' The record evidence establishes this to be the fact and to the extent that
the Trial Examiner found otherwise in fn 9 of his Decision , we hereby
overrule his finding
184 NLRB No. 117
SUNBEAM CORPORATION
same day. When he did so Moore was told that the
Company was aware of his "allegations" and had
ordered him suspended. According to Moore, the
personnel director assured him, "I had his word on
it that I was not being discharged and that I was not
being fired," and Moore further testified that he as-
sumed from this conversation "that it was a suspen-
sion while they investigated the allegations." Moore
refused to acknowledge the authority of such action
until the reason for the suspension and its duration
was given him in a written notice . On October 4, he
again distributed the leaflet between the same
hours to the changing shifts of employees. When he
entered the building to report to work a union
representative referred him to the personnel office
where he was handed the written suspension
notice.' The notice stated that Moore had "engaged
in conduct ... not becoming a Sunbeam employee"
and was suspended indefinitely pending further in-
vestigation . After receiving his written notice of
suspension , Moore added to his petition a handwrit-
ten paragraph stating that, "the Company ter-
minated my employment October 4, 1967, without
just cause, under the guise of enforcing the Com-
pany rules" and he continued distributing the
leaflets by hand adjacent to company property.
On October 5, the Union filed a grievance on
Moore's behalf with respect to Moore's suspension.
Union Representative Janas told Moore in effect
that a strike in these circumstances would violate
the collective-bargaining agreement3 and that he
would be taking the matter out of the Union's
hands if he picketed and urged employees to
boycott Sunbeam products, because the Union did
not want to give the impression that it was authoriz-
ing a strike in violation of this contract's no-strike
clause.
On October 11, a second-step grievance meeting
was held regarding the suspension. On October 17,
Respondent's representative Hosek wrote Janas
that Moore's petition was an encouragement to
' Moore read the notice and insisted upon returning it physically to a per-
sonnel officer, purportedly because he had not been accorded union
representation at the time of the oral suspension or at the time of the
presentation of the written document The notice was then delivered to the
union representative who had remained in the lobby outside
3 Art 1, par 5 of the collective- bargaining agreement provides
5 In view of the provision for final arbitration of grievances arising
under this agreement , the Union and its members, individually and
collectively agree that during the term of this Agreement they will not
cause, authorize , encourage , permit or take part in any strike , and the
Company agrees there shall be no lockout
(a) For the purpose of this Section , the term 'strike' includes a
sit-down , stay-in , slow-down, walk-out, curtailment of work, stop-
page of work , willful refusal to perform assigned work, or any
other interference with work or orderly production , or picketing
of the Company's plant or premises
951
strike and the Union would be held responsible for
the consequences. Janas told inquiring employees
that they should not recognize Moore's so-called
picket line, since it was not sanctioned by the
Union and was in breach of the no-strike clause.
On October 17, Moore was discharged effective
October 4, the discharge letter stating in part that
Moore sought to encourage a strike and product
boycott. On October 24, Moore picketed the
Respondent's premises. Before this "march" he had
told Union Representative Rapacz that other em-
ployees should not join the picketing and he also
made similar statements directly to two employees.
Moore discontinued his protest picketing purpor-
tedly to avoid any participation by the second shift
employees in the "march."
On October 31 a third-step grievance meeting
took place on Moore's discharge (the grievance on
the suspension having been converted to one on the
discharge), and on November 8 the Union in-
formed Moore that it was unwilling to take his re-
jected grievance to arbitration.
Although we disagree with the Trial Examiner's
conclusion that Moore's activity was not con-
certed,4 we are nevertheless of the opinion that
such activity was not protected by the Act.5 The
no-strike provision of the contract, quoted, supra, is
a broad commitment by employees individually and
collectively to utilize the grievance-arbitration
provisions of their agreement to resolve employee
grievances and not to employ economic pressure to
support their position in any disagreement. Specifi-
cally included is a commitment "not [to] cause, en-
courage ... or take part in any strike," and by the
incorporated definition "the term `strike' includes
.. . any . . . interference with work or orderly
production, or picketing of the company's plant or
premises." In the open letter portion of the leaflet,
Moore literally threatened within a specified time
to present his grievances to his fellow employees.
Further, the "petition" addressed to "Employees of
(b) It is agreed , however, that the Union will not be held liable
for acts beyond its control , and therefore , the Union will be held
in violation of this Agreement only for the acts authorized or con-
sented to by a Union officer or representative who has authority
to call a strike under the Union's constitution or by-laws
(c) The Union agrees to cooperate in combating unauthorized
strikes and immediately upon notice to an authorized officer or
representative, the Union agrees to ask the strikers to return to
work
° See Illinois Ruan Transport Corporation , 165 NLRB 227, Walls Manu-
facturing Company, Inc , 137 NLRB 1317
' Moore filed a grievance over the Respondent's failure to transfer him to
Department 133 This grievance was disposed of through the grievance
procedure when the Respondent gave its final answer on February 13, and
there is no showing that Moore was not fairly or adequately represented by
the Union in pursuing his grievances The Union also took up Moore's
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunbeam . . ." elsewhere repeatedly appeals for
support in Moore 's endeavors . Such an appeal in a
document in which the author announces his intent
to picket on a specified day at the Company's
premises , in our view , would reasonably , if not in-
evitably , be read as an instigation to other em-
ployees to strike. That fellow employees so in-
terpreted the leaflet is apparent from Janas' warn-
ing to Moore on October 5 that if Moore was going
to picket Janas would have to refuse to process
Moore 's grievance further because of the contract
no-strike clause , and Janas ' additional testimony
that even prior to October 5 , shop stewards had
asked him if they should recognize a picket line if
one was established . Moreover , after these
warnings Moore himself deemed it necessary to dis-
claim a strike intent and to request other employees
not to walk with him on his so-called march. How-
ever , the purported disclaimer did not occur until
after he was discharged and therefore does not
determine whether Moore 's petition in itself en-
couraged employees to strike within the contract
definition before his discharge . Even viewing the
appeal for support as relating only to participation
in the consumer boycott , we regard such conduct
as in conflict with the basic intent of the no-strike
clause inasmuch as it employs economic pressure in
support of a grievance contrary to the stated intent
that such matters be settled only within the
grievance -arbitration procedure to which em-
ployees were individually committed .' In these cir-
cumstances , we find that Moore 's activity was not
protected.
Accordingly , we conclude that the Respondent's
discharge of Moore did not violate Section 8(a)(3)
and (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Sunbeam Corporation,
cause through the grievance procedure when he was suspended and when
the suspension was later changed to discharge, in part for breach of the
contract no-strike provision Whether that provision forbids Moore's con-
duct is properly a matter for grievance and arbitration , and the parties have
resolved this question through the grievance procedure Here again there is
no indication of a lack of fair and adequate representation Accordingly,
Member Brown would defer to the resolution reached under that
procedure without reaching the legal issues considered herein
Chicago , Illinois , its officers , agents , successors,
and assigns , shall take the action set forth in the
Trial Examiner 's Recommended Order, as modified
below.'
MEMBER JENKINS , concurring in part and dissenting
in part:
I concur in my colleagues ' conclusion that
Moore's distribution of his leaflet was concerted ac-
tivity , but unlike my colleagues I would also find
that his activity was protected by the Act. I can find
no record support for concluding that Moore's
"leaflet and other conduct " can be interpreted "as
an instigation to other employees to strike" in
violation of the no-strike clause.
I am unable to determine from the record what
"other conduct " the majority is relying on to strip
Moore's activity of the protection of the Act. Cer-
tainly Moore's picketing on October 24, 1967, can-
not be considered " such conduct" for the picketing
did not occur until after his suspension on October
4 and his discharge on October 17 pursuant to il-
legally broad no-solicitation and petitioning rules.
Nor can I believe that the majority is adopting the
Trial Examiner's intemperate characterization of
Moore 's activity as "calculated irresponsibility in
deliberately attempting for purely personal ad-
vantage to kindle wholly unwarranted racial pas-
sions-action which , considering the neighborhood
in which Respondent 's plant is located , was fraught
with sinister hazard of escalation of racial disorder"
as "other conduct" which removed his activity
from the protection of the Act. If so, it would also
appear that like the Trial Examiner they would con-
clude that Moore's activity was not concerted
because it was "slanted to his personal situation."
Thus, in my view , in the absence of any reliance on
specific conduct the majority 's decision must rest
solely on their interpretation of the contents of
Moore's petition.
As the record amply demonstrates , Moore had
during his employment attempted on several occa-
sions to implement the collective-bargaining agree-
' Unlike our dissenting colleague, moreover , we deem it irrelevant in this
proceeding to inquire into the merits of Moore's complaints and
grievances , and their disposition under the applicable grievance-arbitration
provisions It is not our function to retry such matters which the parties
have disposed of in accordance with their binding contract obligation
t Arlan 's Department Store of Michigan, Inc , 133 NLRB 802, 808
'In fn. 37 of the Trial Examiner 's Decision substitute the word
"Judgment" for "Decree" wherever it occurs
SUNBEAM CORPORATION 953
ment by filing grievances which related to and were
in the interest of bettering working conditions for
both himself and his fellow employees. Finding
himself stymied in his effort to resolve his
grievances respecting his transfer to leadman in De-
partment 133 and the downgrading of his job duties
in Department 437, Moore first sought to bring to
the attention of top management in a letter to Pre-
sident Gwinn the facts underlying his grievances,
facts which had led him to conclude that the Com-
pany was engaging in "discriminatory practices in
promotional and upgrading procedures."9 Receiv-
ing no satisfactory response to his complaint, he
prepared his petition which included his letter to
Gwinn, his protestations with respect to the unfair-
ness of the grievance procedure, and an appeal to
his fellow employees and the public to support him
through a product boycott in his "endeavors to
eradicate deplorable working conditions, to be as-
sured unbiased and trustworthy Union representa-
tion; and to make `Equal Opportunity in Employ-
ment ' a statement in fact...."
It is obvious that at the heart of his petition
Moore was concerned with fair representation for
all the employees in accordance with the collective-
bargaining agreement and viewed his own ex-
perience in trying to resolve his grievances under
the grievance procedure examples of the Com-
pany's and the Union's disregard of the collective-
bargaining agreement. As an indication of their
support, Moore requested that the recipients of his
petition refrain from making purchases of Sunbeam
appliances or causing the purchase of Sunbeam ap-
pliances. There is no appeal to his fellow employees
to cease producing such appliances by engaging in
a strike. On the contrary the entire thrust of the ap-
peal is for a consumer product boycott in support
of his effort "to obtain equal and just settlements to
the aforementioned grievance ... and better work-
ing conditions. "10 Thus, all that remains is whether
his statement that he would "march in protest of
the conditions" at the plant constituted an instiga-
tion to other employees to strike. I think not.
Moore had specifically limited his request for
support from the public and the employees to a
product boycott and there is no evidence that by
any other overt act or appeal he sought the support
of other employees in his protest march." Nor can
his mere announcement of his intention to march
be interpreted as an implied invitation to the em-
ployees to strike. In fact the record shows that he
was concerned lest other employees join him and
took explicit action to disavow any intention on his
part to involve other employees by telling
Representative Rapacz to make certain that other
employees did not march with him. Further, he told
two employees he did not want anyone walking
with him. In the absence of any evidence to the
contrary, it is clear that the record fully supports
the conclusion that Moore did in fact effectively
disclaim any intention to instigate a strike which
might have been erroneously implied in his an-
nouncement of his intention to march at the com-
pany's plant.
In view of these record facts, I would not strip
Moore's concerted activity of its protection under
the Act by invoking a strained interpretation of his
leaflet as implying an instigation to other employees
to strike. The protection guaranteed employees to
engage in concerted activities should not be lightly
removed by implication, particularly where as here
the employee's conduct of record does not reveal
any overt acts which could reasonably be construed
as an attempt to cause or precipitate an illegal
strike. I am not willing to infer an illegal object un-
less I am satisfied that there is sufficient objective
evidence of record to sustain such a conclusion.
Accordingly, I would find that the Respondent's
discharge of Moore violated Section 8(a)(3) and
(1) of the Act.
Finally, I do not agree with Member Brown's
conclusion that the legal issues in this case should
be avoided by deferring to the resolution of
Moore's grievance over the Respondent's failure to
transfer him to Department 133 under the
grievance procedure. The majority has found that a
rank-and-file employee in Department 133 was in
fact working full time as a leadman.12 It was his fac-
e Moore, a black employee, qualified by examination for and was
promised promotion to leadman in Department 133 Though told on the
day of transfer that no opening existed, Moore learned that the vacancy
was filled by a white employee who assertedly had failed the examination
10 The majority does not contend that Moore 's request for a product
boycott was not clearly related to his dispute over working conditions or
that it disparaged Sunbeam 's products or that the means employed was not
both peaceful and the objectives were not improper for reasons of public
policy See N L R B v Local Union No 1229, IBEW (Jefferson Standard
Broadcasting Company), 346 U S 464, 476-478, The Hoover Company, 90
NLRB 1614, 1621-22, Sears, Roebuck & Co, 168 NLRB 955
" Moore's petition was addressed to "Employees of Sunbeam Corpora-
tion and Purchasers of Sunbeam Appliances " It was not prepared for dis-
tribution solely to the employees , but in fact was mailed to various public
officials and organizations In addition , copies were distributed to the
general public
1R See p 2 of the majority 's decision and particularly fn 1, 'bid , overrul-
ing the Trial Examiner 's finding to the contrary
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tual dispute which gave rise to Moore's grievance
initially and later his protest in his letter to Gwinn
which he incorporated in his petition. Thus, the
resolution of Moore's grievance was apparently
based on misinformation with respect to the prin-
cipal operative fact in issue.13 In my view, this obvi-
ous defect in the grievance proceedings makes
wholly irrelevant the fact that there is no showing
that Moore was not fairly or adequately
represented by the Union in pursuing his
grievances. It is clear that the grievance
proceedings were neither concerned with nor did
they result in a resolution of Moore's grievance,
i.e., that a rank-and-file employee in Department
133 was working full time as a leadman, indicating
to Moore that there had been and still was a lead-
man position available for which he qualified. This
grievance still remains unresolved for it never has
been deliberated upon by the parties because of
their failure to have considered the basic fact un-
derlying the grievance. Deference to such a
proceeding can only serve to foster more acts of
self-help by other employees who find themselves
frustrated, as was Moore, -by the available grievance
procedure.
" The Respondent in its brief continues to contend that there was no
need for a full-time leadman in Department 133
184 NLRB No 117-T-38
TRIAL EXAMINER'S DECISION
I. PRELIMINARY STATEMENT; ISSUES
STANELY N. OHLBAUM, Trial Examiner: This
proceeding under the National Labor Relations
Act, as amended , 29 U.S.C. Sec . 151, et. seq.
(Act), was tried before me in Chicago , Illinois, on
January 22-23 and February 25-27, 1969, with all
parties represented by counsel and participating
throughout . The pleadings ' present issues as to
whether Respondent violated: (I) Section 8(a)(1)
of the Act through promulgation , maintenance, and
enforcement of an improper rule concerning sol-
icitation and petitioning by employees ; ( 2) Section
8(a)(3) and ( 1) of the Act by suspending (October
4, 1967) and discharging (October 17, 1967)
James A. Moore , Jr. (Charging Party herein),
because he engaged in concerted or protected ac-
tivity under the Act, consisting of his distribution to
fellow employees on public property adjacent to
Respondent's parking lot during nonworking time
of a certain document requesting their support of
"his and their common grievance against certain
' Complaint issued by the Board's Regional Director for Region 13
(Chicago, Illinois ), on November 18, 1968, based on a charge filed by
James A Moore, Jr , on November 13, 1967, answer dated November 27,
company policies and working conditions at the
plant."
Full opportunity was afforded to all parties at the
trial to present evidence, both testimonial and
documentary, to subpena, examine, and cross-ex-
amine witnesses, to present and answer conten-
tions , and to propose findings and conclusions. Sub-
sequent to the trial, in accordance with leave
granted for that purpose, briefs were filed in behalf
of General Counsel and Respondent; these,
together with the evidence, have been carefully
considered.
Upon the entire record' and the testimonial
demeanor of the witnesses as observed by me, I
make the following:
FINDINGS AND CONCLUSIONS
II. PARTIES; JURISDICTION
Respondent Employer, an Illinois corporation
with principal office and place of business at 5400
West Roosevelt Road, Chicago , Illinois , where it
engages in research, manufacture, and distribution
of household electrical appliances, during the
calendar year 1966 furnished goods and shipped
materials valued in excess of $50,000, directly in
interstate commerce from its Illinois location to
places outside of that State.
I find that at all material times Respondent has
been and is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and that assertion of jurisdiction in this
proceeding is proper.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Sunbeam Corporation is a nationally
known manufacturer of household electrical ap-
pliances. It has four or five plants in the Chicago
area, since October 1967 , employing approximately
2,400 employees (in October 1966 the number was
over 3,700). Its main plant (known as "Plant 2")
and corporate headquarters are located on West
Roosevelt Road in West Chicago, abutting the sub-
urban communities of Cicero ( immediately south,
across the street from the plant) and Berwyn; to the
east and northeast is a Negro neighborhood, the
plant lying between a black residential area and
white residential area. Plant 2, the locus of the
events here involved, employs around 1,200 em-
ployees, 80 to 90 percent of them on the first shift
(8 a.m. to 5 p.m.).
According to testimony of James A. Moore, Jr.,
the Charging Party, he first entered Respondent's
employ in May 1962 as a punchpress operator, con-
1968
z Trial transcript as corrected by my April 29, 1969, order on notice
SUNBEAM CORPORATION 955
tinuing until he announced his resignation on May
13 to be effective May 17, 1963, to become a tax-
icab driver.' However, on his last day of work, after
the Company had already accepted and processed
his resignation, he suffered an industrial accident
involving an 85-percent loss of use of his left hand.
The Company agreed to fulfill its obligations arising
out of Moore's accident. Moore, however, wished
to return to work. The Company, having already
accepted and processed his resignation and con-
sidering Moore incapable of performing his previ-
ous work, refused. Moore's Union agreed that the
Company was not obligated to return Moore to its
employ under the circumstances. Moore thereupon
charged the Company with discriminatorily forcing
his resignation because of union activity (Case
13-CA-5837). The charge was dropped when the
Company gave Moore a different job within his al-
tered capability, that of power truck operator, in
September 1963.' Moore continued in that capacity
until 1966, when he became an inventory clerk
(Dept. 936). Concededly with the encouragement
of Respondent's personnel officials, Moore un-
dertook self-betterment courses and in June 1966
passed the Company's test for the position of lead-
man, setupman, and group leader. Thereafter, in
the period ensuing after Moore's passing of that test
(June 29, 1966) and the termination of his employ-
ment (October 17, 1967) under circumstances to
be detailed, Moore served sporadically and for
varying periods in the position of setupman-lead-
man in various departments; on each occasion,,
however, being returned to his position of power
truck operator (or other rank-and-file position)
because of departmental retrenchment or the asser-
tion of "bumping" rights by senior leadmen dis-
placed from their leadmen positions. A brief ex-
planation of this may be in order. Respondent's
operation at its West Roosevelt Road plant is de-
partmentalized. In part because of shifting levels of
production demands upon the various departments,
the level of activities of the departments varies,
resulting in variations in personnel needs. Thus,
with a lowered personnel need in a given depart-
ment , one or more leadmen employed in that de-
partment may lose their jobs as leadmen or even be
altogether displaced from employment. In such
situations, leadmen so displaced may exercise
"bumping" rights over leadmen having less seniority.
For this reason Moore was on a number of occa-
sions displaced from his leadman position and
"bumped" back to his job as power truck operator.
This was true of other leadmen as well. Persons in
Respondent's employ become leadmen by being
placed on a leadman list after passing the Com-
pany's qualifying examination. Under Respondent's
collective agreement with the Union (of which
Moore is a member), the Union polices, although it
does not control, promotions to leadman and other
vacancies. It is conceded by Moore that the collec-
tive agreement requires each available job to be
filled by the most senior qualified employee; also
that, under the collective agreement, transfers are
discretionary with the Company. There is also in ef-
fect in Respondent's plant a system whereby em-
ployees may temporarily fill leadman jobs on what
is known as a "step-up ticket." For example, if a
setupman or leadman is required because of the ill-
ness or other temporary absence of the leadman, an
experienced rank-and-file employee in the same de-
partment may be temporarily assigned to act as
setupman or leadman pending the return of the
leadman or the assignment of a new leadman. Such
"step-up ticket" assignments are made only for
temporary, persuasive reasons, under the policing
of union officials administering the collective agree-
ment.5
During his 5-year tenure with Respondent,
Charging Party Moore filed a number of grievances
against the Company. These included grievances
concerning the assignment or distribution of over-
time on three occasions (1964 and 1965, prior to
his passing the leadman test); over allegedly unsafe
working conditions (also prior to his passing the
leadman test); over an alleged improper failure to
assign him as a leadman to a particular department
(Dept. 133; 1966); and over a request by him for a
material handler to assist him as a leadman in cer-
tain manual work (Dept. 437, 1966). At least the
latter two were wholly unsuccessful. According to
the testimony of Union Business Agent Janas,
Moore's grievances were without exception "per-
sonal" to Moore, there being no indication that any
other employee had associated with Moore in any
of those grievances. According to Moore-but
disputed by the Company-his activities as a grie-
vant had earned for him with the Company the
soubriquet of "attorney" or "troublemaker." At the
trial, Moore cited as evidence of this a 1965 ac-
cusation to that effect at a meeting on a grievance
' Respondent 's 1963 terminal employment record for Moore states
"Quitting-He liked working for Sunbeam , but just didn 't care for his fore-
man's policies "
' Moore conceded on cross-examination here that he was informed by
the Board agent that "unless the charge was withdrawn, it would be
dismissed "The charge was accordingly withdrawn
' As explained by Union Representative Janas, there have even been in-
stances when rank -and-file employees have been on "stepup" as leadmen
for periods perhaps as long as 2 years, on and off, because of temporary
surges of work orders . The Union, which policed such matters , did not re-
gard them as improper , in the absence of any relevant provision in the col-
lective agreement , the entire matter being governed by past practice Also,
as explained by company witnesses, in certain cases involving highly spe-
cialized operations requiring a prolonged training or experience qualifica-
tive period , it-was the practice to utilize qualified rank-and-file employees
on "stepup," particularly where a full-time regular leadman was not
needed on a reasonable permanently continuing basis Rank -and-file em-
ployees on "stepup" as leadmen are paid at leadman rates
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed by Moore , by former Company Vice President Moore against his Employer , the following charges,
for Employee Relations Uhler, now deceased .6 other than those in this proceeding , were filed by
In addition to the foregoing grievances filed by him before the Board against his Employer:
Board Case Date of Substance Disposition
Charge
13-CA-5837 8-23-63 Discriminatorily
forced to resign
because of Union
activity
Withdrawn
13-CA-7102 7-19-65 Discrimination
for filing a
grievance
Regional Director
refused to issue
complaint
13-CA-7772 2-27-67 Discrimination
for Union or
other protected
activities
Withdrawn
13-CA-7864 & 5-1-67 Discrimination Regional Director
13-CB-2186 for Union or
other protected
activities
refused to issue
complaint
B. Events Culminating in Termination of Moore's
Employment
By August 1967 Moore had become a seriously
disaffected employee because of his failure to ob-
tain a permanent position as setupman or leadman.
Regardless of the merit or lack of merit in Moore's
position and feelings in this regard, Moore con-
cedes his understanding that the permanent setup-
man-leadman assignment system is regulated by
seniority, which the record establishes he did not
have. It is further stipulated upon the record that
there is no contention in this proceeding that
Respondent 's termination of Moore's employment
was because of his color or race.7 Credited
testimony8 establishes that, except for Moore, no
complaint or grievances has been received from
any other employee regarding the Company's
utilization of employees on "set-up tickets" for
leadman jobs. Substantial credible evidence, includ-
ing Respondent 's records maintained in the regular
course of its business , was adduced by Respondent
to show that Respondent in no way discriminated
against Moore , as a Negro or otherwise , in any of
his job assignments.9
° Respondent's initial objection to the admission of such testimony as
barred by the "dead man's statute " of Illinois, where this case was tried,
was withdrawn , but Respondent persists in objecting that the testimony is
immaterial Respondent 's objection on the latter ground is hereby over-
ruled, since on the record presented the testimony appears to be potentially
material on the issue of Respondent 's alleged bias toward Moore because
of his grievance activity , and thus potentially material to the basic issue
here if those activities be regarded as "concerted ," a subject discussed in-
fra However , although I have admitted into evidence the testimony con-
cerning the alleged statements of Uhler to Moore, I have nevertheless,
under Board policy, scrutinized with care and treat with reserve such state-
ments attributed to a deceased person by an interested party Cf Calandra
Photo, Inc , 151 NLRB 660, 669 , fn 23, Pasadena Bowling Center, 150
NLRB 729 , 733-734, Chun King Sales, Inc , 126 NLRB 851, 864-865, Sam
Wallick , d/b/a Wallick & Schwalm Company, 95 NLRB 1262, 1263, enfd
198 F 2d 477 , 483 (C A 3), Hazen & Jaeger Funeral Home, 95 NLRB
1034, 1043, fn. 9 enfd 203 F 2d 807 ( C A 9), West Texas Utilities Com-
pany, Inc, 94 NLRB 1638, 1639 , enfd 195 F 2d 519 (C A 5), Linde Air
Products Company, 86 NLRB 1333, 1336-37 , Reynolds Wire Company, 26
NLRB 662, 666-667, enfd as modified 121 F 2d 627 (C A 7) It is further
noted that in significant aspects ( e g , the "troublemaker " epithet which
according to Moore's testimony was applied to him by Uhler ) Moore's
testimony was not corroborated by his own witness Taylor Campbell
'Trial transcript , pp 179-180, quoted infra
° That of Respondent Personnel Director Byrne
° Thus, substantial documentary as well as testimonial proof was ad-
duced to demonstrate that Moore 's reporting at the personnel office on Oc-
tober 24 , 1966, for a leadman job in Department 133 was the result of per-
sonnel office error , attempted to be immediately rectified by assigning
Moore at his request to another leadman job (Department 437) on the very
same day (whereupon Moore filed a grievance for not having been assigned
to Department 133), and that when Moore was "bumped back" from a
leadman job it was by leadmen senior to him (e g , Oye) who had them-
selves been "bumped back " or who were faced with retrenchment layoff,
that Respondent employed other Negroes as leadmen , and that, contrary to
Moore's suspicions , rank -and-file employees (e g , Goff, Taylor, and
Wood( s)) working as leadmen on "step-up tickets " were not at times here
material so employed full-time or under conditions requiring or justifying
utilization of a regular full-time leadman Substantial credible evidence
(testimony of Respondent 's witnesses Klecan, Mederich, and Calderone)
was also adduced to demonstrate that during Moore's assignment as a
second-shift leadman in Department 437 he was-contrary to his conten-
tion-permitted and, indeed , expected to function in that capacity, per-
forming the same duties as had previously been performed there by other
second-shift leadmen ( Reyna and Blaha)
SUNBEAM CORPORATION 957
By the beginning of August 1967, Moore's dissaf-
fection had reached the point where he sent a letter
directly to Sunbeam President Robert P. Gwinn.
Addressed to President Gwinn, it purports to
review Moore's unredressed grievances, states his
"feel[ing] that top management is systematically
denying me the opportunity to advance to the full
extent of my ability . . . only because I am a
Negro"; charges Sunbeam with "discriminatory
practices in promotional and upgrading procedu-
res"; points out that a meeting with Sunbeam Pre-
sident Gwinn and Union Business Representative
Janas, requested in a previous letter from Moore in
February, was denied;10 and, stating that his com-
plaint "can not be ignored," now "again ...
request[s] a date to meet with you [i.e., Sunbeam
President Gwinn] and Mr. Janas. Time is of the es-
sence of this request . . . : the only alternative of my
request, is for me to present my grievances to my
co-workers, and the public."
Concerning Moore's August 11, 1967, letter to
Sunbeam President Gwinn, on August 17, 1967,
Sunbeam Vice President and Director of Employee
Relations Palenchar wrote President Gwinn, with a
copy to Sunbeam Chicago Division Employee Rela-
tions Manager Hosek:
Your office sent down to me a letter from a
Sunbeam employee , James A. Moore , Jr., ad-
dressed to you on August 11, 1967. In addi-
tion , you directed to us a formal charge of al-
leged racial discrimination by Mr. Moore that
he filed with the N.A.A.C.P. with copies to the
Secretary of Defense , Air Force, Army, and
Navy in Washington , D.C. Chuck Hosek will
pick this up from this point, and if the
N.A.A.C.P. calls you , simply direct the call to
either Chuck or myself.
Mr. Moore has filed a grievance that went
through the grievance procedure and the
Union did not process it any further as it
lacked merit. Mr. Moore then filed an unfair
labor practice charge at the N .L.R.B. that has
been turned down.
This racial discrimination charge apparently is
one more step in his effort to cause trouble and
to generate some kind of problem for both the
I.A.M. and Sunbeam.
To this point he had played down racial dis-
crimination and emphasized, generally, Com-
pany and Union discrimination.
10 Moore's February 18, 1967, letter to Sunbeam President Gwinn,
requesting Gwinn personally "at the earliest possible moment " to meet
with Moore , the union representative, and Sunbeam Chicago Employee
Relations Manager Hosek , is characterized therein by Moore himself as an
"appeal made by me and in my behalf " It was referred to Chicago Divi-
sion Employee Relations Manager Hosek , who on March I wrote a reply to
Moore urging him to present the matter through contractually established
grievance channels which would " assure[d ] proper handling of these
problems " Moore thereafter ( March 1967) met with Personnel Director
We will patiently handle this and, I am sure, it
will end up in the same position as the past.
There is no basis for any such charges.
Moore's August 11, 1967, letter to Sunbeam Pre-
sident Gwinn not having evoked a satisfactory
response from Moore's point of view, at the end of
September or beginning of October Moore caused
about 3,500 copies of that letter to be mimeog-
raphed with a heading and an addendum. The
heading shows that it is addressed to "Employees of
Sunbeam Corporation and Purchasers of Sunbeam
Appliances" and is "AN OPEN LETTER TO Mr.
ROBERT P. GWINN, President." There is then set
forth the letter of August 11, 1967, from Moore to
Gwinn, followed by a series of statements com-
mencing with: "Mr. Gwinn and Mr. Janas has
refused to meet with me in an effort to resolve
these problems in an honorable manner." The
document, which Moore refers to as a "petition,"
goes on to speak of the "ignorance" of Sunbeam
President Gwinn as well as Union Representative
Janas of their obligations to Sunbeam employees
and union members, Moore's intention not to "ac-
cept hunger and poverty, injustice and indignity,
nor shall I accept less than my fair share of the
profits I have earned from the investment of years
of service to the Sunbeam Corporation"; and of the
alleged denial to him of leadman position (Dept.
133) because of "my race."" Moore then "peti-
tion[s] .... support" for "my endeavors" from the
persons to whom it is addressed, stating that "Your
support will be greatly appreciated, and can be of
significant value to this cause."
Your support should be rendered in one or
several ways....
1. Please refrain from buying any Sun-
beam appliances or any appliances made
by Sunbeam Corporation under another
Trade name , for gifts or personal use, and
ask your relatives and friends for their
support.
2. Sign your name , address, city and state
on a post card (do not list your place of
employment). • Along with the statement
"A or B" .. .
A. "I support your cause," and I shall
refrain from making or causing the
purchase of any Sunbeam Appliances until
I know that justice has been served.
B. "I do not support your cause" ... .
Byrne for a full discussion of his complaints, in the presence of a union
representative , and was told that Company President Gwinn did not wish to
set a precedent by meeting with Moore ( as of I of 2,400 employees in
Chicago alone ) personally
" There are also set forth a number of accusations against the Union
There is no complaint against the Union before me, the Board 's Regional
Director and General Counsel having refused to issue such a complaint on
charges filed by Moore
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and send to;
Mr. James A. Moore, Jr.
7015 South Laflin Street
Chicago, Illinois 60636.
The Moore document states that "COPIES OF
THIS PETITION ARE SENT TO," inter alia, The
President of the United States; a Justice of the
Supreme Court of the United States; the Secretaries
of Defense, Army, Navy, Air Force, and Labor; the
Civil Rights Division of the Department of Justice;
the Federal Equal Employment Opportunity Com-
mission ; the Office of Federal Contract Compliance
of the Department of Labor; the United States
Senators from Illinois; the Governor of Illinois; the
mayor of Chicago; various Chicago newspaper edi-
tors; various religious leaders, clergymen, and
union leaders; and various organizations dedicated
to the elimination of anti-Negro prejudice. The
"petition" concludes: "On October 24,1967 I shall
march in protest of the conditions here at Sunbeam
Corporation. This will be an all day protest march
in front of the company, 5400 West Roosevelt
Road, Chicago, Illinois.""
It is conceded that on October 2, 1967, Moore
handed a copy of this document to fellow-employee
Patricia Thomsen in the plant during working
hours. Based on credited testimony of Patricia
Thomsen and the record as a whole (including ad-
missions by Moore), it is found that the handing of
this document to Miss Thomsen together with an
accompanying discussion of several minutes oc-
curred during the working time of both Miss Thom-
sen and Moore. At the time this occurred, Respon-
dent's "Employee Handbook" (effective February
1948 and revised November 1960) contained the
following provisions:
SOLICITATIONS AND SELLING
Solicitations between employees are forbidden
on Company property. It is granted that there
are many worthy projects for which solicita-
tions might be made, but it is deemed that the
best interests of all employees are served by
limiting solicitations in-the plant to the "drives"
sponsored by the Company for Community
Fund, Red Cross, etc.
The promotion of sales of any kind to fellow
employees is also forbidden on Company
premises. Tickets, "chances," supplies, or
merchandise or any sort are included in this
restriction.
* * * *
COLLECTIONS
*
* * *
Under no circumstances will collections among
employees for any other purpose [i.e., other
than death memorials or wedding and depar-
ture gifts] be permitted on Company time. Em-
ployees promoting unauthorized collections
will be subject to dismissal.
PETITIONS
The Company will not recognize petitions from
employees for any purpose whatsoever, and
furthermore, will not permit the circulation of
petitions on Company premises . Employees
who are responsible for the circulation of peti-
tions on Company premises will be subject to
dismissal . Employees wishing to register com-
plaints or make suggestions, may discuss any
such matter with their foreman or with the Per-
sonnel Department.
It was testified by Respondent's former employee
relations manager (for 20 years until his retirement
in August 1968) and member of the Company's
collective agreement negotiating team Hosek, that,
notwithstanding the quoted language from the em-
ployee handbook concerning solicitation, the rule
against solicitation applied only to working time as
provided in the collective agreement13 in the pos-
session of the union stewards. The Moore "peti-
tion" given by him to Miss Thomsen on October 2
as indicated fell into Respondent's hands, resulting
in Moore's suspension on October 3 pending in-
vestigation ."' It is conceded that thereafter, for 4
days commencing on October 3, Moore not only
gave further wide distribution to this document by
"There is also added to this statement the following in handwriting
"The company terminated my employment Oct 4, 1967, without just
cause , under the guise of enforcing the company rules Even though the
rules as defined in the Employee Handbook are contrary to the facts "
However, the evidence establishes that widespread distribution of the
"petition" was made by Moore even prior to October 4-when, inci-
dentally, he was not discharged as he states, but merely suspended. The
circumstances attending Respondent 's suspension of Moore on October
4 and his discharge on October 17 are detailed below
""There shall be no solicitation of membership , and there shall be no
participation in Union or anti -union activity during working hours, other
than as hereinafter provided in the processing of grievances " Collective
agreement of January 3, 1967, art 1, par 2
" Moore testified that he refused to accept this suspension, stating to
Sunbeam Personnel Director Byrne, "I [Moore ] would not recognize the
verbal suspensigtt` in order for me to honor the suspension, it would be
in writing ,; tmg the duration and the reasons for my suspension " Ac-
cording to Persoflel Director Byrne , Moore refused to surrender his plant
pass and ,[oeker key Moore testified, "I [Moore] told him [Personnel
Director Byrne) that I would report to work as usual until such time as I
received this in writing " Moore accordingly returned to work the next day
(October 4 ) When he received a written notice of suspension that morn-
ing, according to his testimony he returned it "because it did not specify
what my misconduct was And it did not have the duration of my suspen.
sion And ; also, I was not offered union representation . " which he had
allegedly requested
SUNBEAM CORPORATION
mail but that he also distributed it personally by
hand on public property at and near the entrance to
Sunbeam's West Roosevelt Road and other
Chicago premises, as well as to his taxicab passen-
gers and friends and relatives.
During part of the time when Moore handbilled
the described document, his suspension was in
grievance status, a grievance having been filed on
his behalf by the Union on October 5. He neverthe-
less continued to handbill and thereafter on Oc-
tober 24 he picketed, it being according to his
testimony his "intention .... to picket unless [I]
received the opportunity to meet with [Sunbeam
President] Mr. Gwinn [personally] of if [my]
Grievances 1155 and 116015 were [not] settled
satisfactorily."
The upshot of this activity was that Moore's em-
ployment was terminated by Respondent on Oc-
tober 17 for the stated reasons of solicitation, peti-
tioning, inattention to duties, and misconduct (in
relation to his giving to and discussing the
described "petition" with Miss Thomsen in the
plant during working time on October 2);
dishonesty, falsification, and misconduct (in rela-
tion to the contents of his "petition," including his
reference to Sunbeam President Gwinn as
"ignorant"); conduct harmful to his fellow-em-
ployees; and encouraging a strike and boycott of
products manufactured at the plant.
The subsisting collective agreement provides:16
In view of the provision for final arbitration -of
grievances arising under this agreement, the
Union and its members, individually and col-
lectively agree that during the term of this
Agreement they will not cause, authorize, en-
courage, permit or take part in any strike, and
the Company agrees there shall be no lockout.
(a) For the purpose of this Section, the
term "strike" includes a sit-down, stay-in,
slow-down, walk-out, curtailment of work,
stoppage of work, willful refusal to per-
form assigned work, or any other inter-
ference with work or orderly production
or picketing of the Company's plant or
premises.
On October 17, 1967, Respondent's Employee
Relations Manager Hosek wrote Union Representa-
tive Janas that Moore's invitation to all Sunbeam
employees, in his described "petition," to join with
him as he proposed, constituted encouragement to
strike, in violation of the subsisting collective agree-
15 These particular grievances dealt with Moore's not having been as-
signed as a leadman in Department 133 rather than in Department 437
(Grievance 1160) and with Respondent 's failure to comply with his request
for a material handler to assist him as a leadman in Department 437
(Grievance 1155)
" Art 1, par 5 and 5(a)
'r Janas testified that even prior to October 5, he had been receiving
inquiries from shop stewards " as to whether or not they should recognize a
picket line if there is going to be a picket line And I told them emphatically
that this was not a sanctioned picket from the Union and, therefore, they
should not recognize it And I told them that I would also be there on that
959
ment to which the Union as well as Moore were
bound . Hosek placed the Union on notice that it
would hold the Union responsible for the con-
sequences . According to the testimony of Union
Representative Janas, he received a telegram from
Moore informing Janas that Moore had been
suspended and asking Janas to meet him at the
plant on October 5. On that morning (October 5)
at the plant , Janas wrote out a grievance for Moore.
"However , I [Janas] did instruct Moore that based
on his petition , that he said he was going to picket
and asking people to boycott Sunbeam 's products, I
told him if he did that , he would be taking the
matter out of our hands because we have a 'No
Strike' clause in our contract . Therefore , if he was
going to picket the place , I wouldn 't want anybody
to misconstrue that we are acquiescing in violation
of the contract . I so informed him that way. He said
he was going ahead and do it. I said , ` Well, if you
do, you are going to take it out of our hands. "117
Against this background , when Union Representa-
tive Janas received Hosek 's letter of October 17
relative to Moore's threatened picket for October
24, Janas informed Respondent that the Union
"recognized the obligations of the Union and that I
[Janas] would be there [ on October 24] to make
certain that we would in no shape or form be tied
in. "18
On October 24, 1967, Moore nevertheless car-
ried out the "march" announced in his described
"petition," by picketing Respondent's West
Roosevelt Road plant . At this time , his employ-
ment-termination grievance was still in process, the
second -step meeting having occurred on October
11.
At the trial , Moore conceded on cross-examina-
tion that he had given the following answers to
questions in a December 1968 deposition in the
presence of his attorney , in a Federal court suit:
Q. Isn't it a fact that the grievance
procedure and the arbitration is the exclusive
method of resolving disputes between the em-
ployees and the Company?
A. And I believe in that, too.
Q. Are you aware or were you aware at that
time , Mr. Moore, that there was a provision in
the contract , called a "No Strike " provision?
A. Yes.
Q. Do you know what that provided?
A. Yes.
Q. What did it provide?
given date to make certain that our contract was not going to be-it
wouldn 't be abrogated And I had to emphatically take the position in
view of the fact that we had a contract , that we had a'No Strike ' clause in
the contract , that if in any shape or form we were to be participating, we
would be subject to suit and we would be libelous [? liable] "
's Although Moore may, as he claims, orally have expressed the idea to
the union representative that he did not wish others to picket with him,
there is no indication that he effectively , in writing or otherwise , withdrew
or countermanded the invitations for support expressed or implied in the
written "petition " which he had widely disseminated
427-835 0 - 74 - 62
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I believe that it meant-you want my be-
lief?
0. Yes.
A. I believe that it meant that an individual
could not strike the Company or a group could
not strike against the Company without the
authority of the Union, without the sanction of
the Union.
Q. Mr. Moore, was it your understanding
that the use of the grievance procedure meant
that individuals could not take any other action
but the use of the grievance proceeding.
What I mean is that they couldn't strike and
couldn't picket, that the grievance procedure
was the only procedure that was to be fol-
lowed?
A. Yes.
0. Do you believe that you were following
the grievance procedure when you handed out
handbills or when you picketed on the 24th of
October?
A. No.
0. Did you think you were?
A. Pardon me?
Q. Go ahead.
A. Repeat your question, please.
MR. CHARONE. Read it, Mr. Reporter.
(Record read.)
THE WITNESS. That is correct.
By Mr. Charone. Now, you thought you
were doing something that was outside the
grievance procedure?
A. Yes.
The third, final step of Moore's employment ter-
mination grievance took place on October 31,
1967. Its outcome was unsuccessful to Moore,
whose employment termination was confirmed. On
November 8, 1967 the Union informed Moore, who
had meanwhile filed a discrimination charge or
complaint with the Fair Employment Practices
Commission , that it was unwilling to proceed to ar-
bitration.19
From the trial transcript:
TRIAL EXAMINER: ... Is it here claimed or
contended that Respondent's discharge of Mr.
Moore was in whole or in part because of his
color or race, or that the Respondent had such a
policy?"
What is General Counsel's position on that,
Mr. Crawford?
MR. CRAWFORD [counsel for General Coun-
sel]: The position of Counsel for General Coun-
sel, you Honor, is that we are claiming and con-
tending only that Mr. Moore was discharged
'v There is no indication that Moore pursued or attempted to pursue ar-
bitration, as he may have been able to Cf Port Drum Company, 170 N LRB
555, and cases there cited As has been indicated , Moore's charges against
the Union , which according to him alleged that the Union was in part
responsible for his discharge and "had failed to process my charges in an
objective manner I [Moore] felt their actions were dubious," resulted in
refusal by the Board's Regional Director and General Counsel to issue a
complaint thereon According to Moore, his charges or complaints to the
because he engaged in concerted activity, as that
term has meaning within the National Labor
Relations Act.
TRIAL EXAMINER: Specifically, with regard to
the question I raised, is the General Counsel
contending or claiming that the discharge was in
whole or in part because of Mr. Moore's color or
race, or that Respondent had such a policy? For
the purpose of this instant proceeding, is that
claim or contention being made here?
MR. CRAWFORD: No. We are claiming that
he was discharged as any other employee may
have been discharged for concerted activities,
not based on race but based on the fact that he
was an employee at Sunbeam, employee within
the meaning of the Act of concerted activities or
within the meaning of the Act as other em-
ployees that he was discharged.
TRIAL EXAMINER: Very well. I believe you
have made your position crystal clear as to
what this discharge was; without reference to
any contention or claim that Mr. Moore may
be making or may be advised to make in any
proceeding other than this. The record should
so indicate. [Emphasis supplied.]
C. Findings and Rationale
The complaint (as amended at the hearing) al-
leges that, in violation of Section 8(a)(1) and (3)
of the Act, Respondent ( 1) maintains an invalid
rule proscribing solicitation and petitioning "on
company property ... [or] on company premises"
and (2) suspended and discharged its employee
Moore because he "distributed to fellow employees
on public property adjacent to the company parking
lot during non-working time" the "petition" which
has been described and that Moore was "engaged
in concerted or protected activity" in so doing.
[Emphasis supplied. ]
We first consider Respondent's no-solicitation
no-petitioning rule. It is contained in an "Employee
Handbook" distributed to employees and intended
to spell out for them the requirements of their em-
ployment and the conduct expected of them by
their Employer. As has been noted above, there ap-
pears to be a degree of inconsistency between, on
the one hand, the rule in the employee handbook,
and on the other, a provision dealing with solicita-
tion and union-related activity in the subsisting col-
lective agreement. Although the employee hand-
book proscribes solicitation and petitioning on
company premises without regard to whether car-
ried on during worktime, the collective agreement
Equal Employment Opportunity Commission (EEOC) as well as to the Il-
linois Fair Employment Practices Commission (FEPC) were likewise
dismissed , but his suit in the Federal district court against Employer and
Union under Section 301 of the Act and Title VII of the Civil Rights Act of
1964 was pending at the time of this trial
20 Cf, e g , United Packinghouse , Food and Allied Workers International
Union [Farmer's Cooperative Compress] v NLRB, 416 F 2d 1126
(CADC)
SUNBEAM CORPORATION
limits the proscription to "working hours" without
regard to where it is carried on. Respondent at-
tempted to establish through testimony that in prac-
tice the rules in its employee handbook are applied
only to worktime, thus conforming to the collective
agreement the requirements of the handbook,
which has, however, not been changed, in Em-
ployee Relations Manager Hosek's words, for
reasons of "economy" pending exhaustion of exist-
ing stocks of the current edition of the Handbook. I
do not, however, believe this should be regarded as
a persuasive justification or valid defense for the
continuing distribution to employees of the in-
dicated rules as printed in the employee handbook,
nor for Respondent's failure at least to issue a cor-
recting statement or announcement; provided, of
course, that those rules as there stated are improper
under the Act.21 That they are improper under the
Act is quite clear, since they constituted an inter-
dict against solicitation even on employees' own
time (e.g., meal and rest periods). Although em-
ployees may properly be forbidden by their em-
ployer to engage in union solicitation on the em-
ployer's premises while soliciting and solicited em-
ployees are or should be working (Republic Avia-
tion Corporation v. N.L.R.B., 324 U.S. 793;
Republic Aluminum Company v. N.L.R.B., 394 F.2d
405, 408 (C.A. 5)), such solicitation on the em-
ployer's property during the soliciting and solicited
employees' own time may be forbidden only in the
presence of unusual circumstances (Mason &
Hanger-Silas Mason Co., Inc. v. N.L.R.B., 405 F.2d
I (C.A. 5), such as the necessity of maintaining
production or discipline. The Board has also
crystallized a distinction between solicitation and
distribution by employees on employer premises:
(1) as to solicitation: although an employer rule for-
bidding union solicitation by employees during
their working time in any plant area is presumptive-
ly valid, an employer rule forbidding such solicita-
tion during nonworking time is presumptively in-
valid even though limited to work areas:' (2) as to
distribution: although an employer rule forbidding
distribution of union literature by employees in
work areas during nonworking or working time is
" Cf, e g, N L R B v Mexia Textile Mills, Inc , 339 U S 563, 567,
NLRB v Lexington Chair Company, 361 F 2d 283, 286,295 (C A 4), G
& W Electric Specialty Company v N L R B , 360 F 2d 873, 874 (C A 7),
N L R B v Walton Manufacturing Company, 289 F 2d 177, 180-181 (C A
5) Concerning an unenforced but invalid no-solicitation rule, the court
had occasion to state in Jas H Matthews & Co v N L R B , 354 F 2d 432,
441 (C A 8), cert denied 384 U S 1002 "In regard to his contention [ i e ,
that the no-solicitation rule was not enforced as written], we point out,
first, that it is well established that '(w)hether (an employer) infringed
upon its employees' freedom to engage in union or concerted activity
depends upon the reasonably foreseeable effects of its conduct upon its
employees ' N L R B v Walton Manufacturing Co, 289 F 2d 177, 180 (5
Cir ) As the no-solicitation rule involved herein, on its face would ban per-
fectly legal Union solicitation on non-working time, and as the Company
never gave notice of any rescission of the rule (see Time-O-Matic, Inc v
N.L R B ., 264 F .2d 96 , 101 (7 Cir.)) or a purpose not to so interpret it, an
employee desiring to engage in union solicitation ' might well be deterred,
or else reasonably assume that he acted at his peril ' N L R B v Walton
Manufacturing Co , supra As aptly stated by the Second Circuit in holding
a similar rule unlawful because of its breadth (N L R B v Miller, 341 F 2d
961
presumptively valid, an employer rule forbidding
such distribution in nonwork areas during nonwork-
ing time is presumptively invalid. Stoddard-Quirk
Manufacturing Co., 138 NLRB 615. Applying those
principles here, inasmuch as the indicated presump-
tions have in no way been overcome, it is apparent
that the rules in Respondent's employee handbook
improperly proscribe (1) plant-premises solicitation
by employees on their nonworking time and (2)
plant-premises distribution by employees in non-
work areas during nonworking time. Accordingly, it
is found that Respondent's described rules in its
employee handbook as presently worded infringe
upon legal limitations in the indicated respects.23
We proceed to consideration of the matter of the
termination of Moore's employment.
To begin with, it is not alleged that Moore's
suspension and discharge were because of any
violation of Respondent's described no-solicitation,
no-distribution rules; nor could it justifiably be so
contended, since Respondent's published no-sol-
icitation, no-petition rules, unduly broad though
they be, do not even purport to reach off-premises
solicitation or distribution, which the complaint (as
amended at the hearing) alleges was the reason for
Moore's suspension and discharge.
There can be no doubt that the termination of
Moore's employment was the direct result of his
wide circulation of the described "petition." It is
therefore essential to determine whether the dis-
tribution of that document in the form which it
took and in the manner and purpose for which it
was circulated were activities for which his employ-
ment was, in view of the Act, invulnerable to ter-
mination . Contending that they were, General
Counsel maintains that Moore was discharged in
violation of the Act because he handbilled his
"petition" to fellow employees on public property
and thereby "engaged in concerted or protected ac-
tivity for the purpose of collective bargaining or
mutual aid or protection."
Disputing this, Respondent contends that
Moore's employment was terminated because of
the congeries of circumstances commencing with
his discussion of his "petition" with Miss Thomsen
870, 871, 874) 'The true meaning of the rule might be the subject of gram-
matical controversy However, the employees of respondent are not gram-
marians The rule is at best ambiguous and the risk of ambiguity must be
held against the promulgator of the rule rather than against the employees
who are supposed to abide by it "'
Y' The latter part of the rule, sometimes known as the Peyton Packing
rule , announced by the Board in Peyton Packing Company, Inc , 49 NLRB
828, 843-844, enfd 142 F 2d 1009 (C A 5), cert denied 323 U S 730,
was expressly approved by the Supreme Court in Republic Aviation Cor-
poration v NLRB , supra, 804, in 10
" Respondent urges that under the authority of such cases as N L R B v
Gale Products, Division of Outboard Marine Corporation , 337 F 2d 390
(C A 7)-which it concedes states a principle in conflict among the cir-
cuits and not acquiesced in by the Board-the no-solicitation, no-distribu-
tion rules contained in its employee handbook should be considered valid
since agreed to by the employees through their Union It is unnecessary to
deal with this contention since, unlike Gale, it has not been established here
that the described " prohibitions are the fruits of collective bargaining
agreed to by the employees involved" (Gale, supra, 391) Here the collec-
tive agreement itself indicates the contrary
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the plant during working time on October 2 and
including his extensive distribution by mailing and
handbilling of that "petition" to its addresses (in-
cluding employees), considering its demands, in-
vitations, statements of intention, and other con-
tents. As summarized in Respondent's termination
notification and more fully explained through
Respondent 's witnesses24 at the hearing and in its
brief, Respondent's reasons for suspending and ulti-
mately discharging Moore included his inattention
to duty, violation of work requirements, violation of
the collective agreement, and interference with the
work of employee Patricia Thomsen, when he ac-
costed her during work for the purpose described;25
the misleading, dishonest, and false contents, as
well as the deliberately and highly misleading omis-
sions, of Moore 's "petition "; 26 his misconduct in
widely circulating his_ "petition" among employees
charging Sunbeam President Gwinn with "igno-
rance" of his obligations to employees and unwilling
to resolve problems "in an honorable manner"-
characterizations insolent toward the chief execu-
tive of his employer and inconsistent with con-
tinuance of a reasonably acceptable level of
discipline in an employer -employee relationship; his
obdurate continued insistence upon a personal con-
frontation with no less than Sunbeam President
Gwinn himself-which, considering the vast size of
Respondent's workforce, was unreasonable 21 as
well as unnecessary, and intended by Moore purely
as an improper and intensive pressure tactic; his in-
transigent unwillingness to be governed by the
grievance-arbitration procedures established by the
collective agreement to which he, his fellow-em-
ployees, and his Union were contractually bound;
his express solicitation of Sunbeam employees to
"refrain from making .... Sunbeam appliances,"
and his announcement of an "all day protest march
in front of the company"-in violation of the col-
lective agreement barring striking and picketing
under the total circumstances, his tactic of inviting
in effect a nationwide boycott of his employer',
products in order to pressurize his employer intc
according him what would have been preferentia
treatment contrary to the collective agreement tc
which he was bound; and his calculated irresponsi
bility in deliberately attempting for purely persona,
advantage to kindle wholly unwarranted racial pas
sions-action which, considering the neighborhooc
in which Respondent's plant is located, was fraught
with sinister hazard of escalation of racial disorder.
To those familiar with proceedings before the
Board it is obvious, and to others not familiar of
less familiar with those proceedings it is well to be
aware, that the only issue here is whether any
requirement of the National Labor Relations Act ha,
been violated by Respondent in the respect alleged
there is no other issue which the trial examiner ha,
jurisdiction or power to determine. By statutor3
fiat,28 those limited and narrow issues which are
here for determination in this administrative
proceeding must be resolved upon the basis of pre
ponderating credible evidence; we have repeatedl3
been warned by higher authority that findings upor
a more meager basis will not be permitted to stand
I have therefore necessarily been heedful of his ad
monition in reviewing the record with care in order t(
assess whether this burden of proof and persuasion
which initially is and finally remains upon Genera
Counsel '21 has been satisfied in relation to the nar
row issues permissible for determination here under
the limited grant of authority vested in the Board
by the National Labor Relations Act. Upon close
consideration, in my opinion it cannot justifiably he
held that General Counsel has met his burden of
establishing by a fair preponderance of the substan-
tial credible evidence upon the record as a whole-
according to all items of evidence, both documen.
x' Principally Respondent 's former vice president and director of em-
ployee relations ( Robert E Palenchar, now vice president of personnel,
Swift & Company ) and its former Chicago Division employee relations
manager ( Charles J Hosek , now retired ) Both impressive witnesses; their
testimony in the indicated aspects is credited
"" It is not disputed that employees are permitted to exchange words at
work It is unessential to determine whether or not the circumstances and
length of time involved in Moore's encounter with Miss Thomsen fall into
this category , since Respondent concedes the incident alone would not
have resulted in Moore's discharge, even though according to Employee
Relations Manager Hosek it was unprecedented in Hosek 's 20 years at the
plant.
" For example Moore's omission to mention that following his February
1967 letter to Sunbeam President Gwinn , company officials did in fact in-
vite Moore to confer with them about his problems, and that Moore did so,
Moore's assertion that the "only alternative " which remained to him was to
go to his "co-workers and the public," in the face of his known express
right (as well as requirement ) under the collective agreement to pursue a
grievance procedure and arbitration , his accusation that Respondent was in
violation of various laws and legal requirements , in the face of the fact, also
well known to him, that his charges and complaints had been dropped or
officially dismissed , his accusations of discrimination against him as a
Negro , being irresponsibly false in fact , could only have been intended to
pressurize Respondent into giving him a job which Respondent could not
lawfully give him under the collective agreement , under threat of arousing
racial passions and plunging the factory as well as the Chicago neighbor-
hood in which it is located into racial strife, his statement that he was being
harassed by management , in the face of the fact, likewise well known s-
him, that it was management which had encouraged and provided him wit
the wherewithal to complete the educational prerequisite to his qualiftcs
tion and assignment as a leadmen regardless of race, his deliberately fals
assertion that his leadman job had been " downgraded only because
am a Negro" was irresponsibly calcaulated to kindle racial passions, and hi
circulation of a "petition" irresponsibly falsely asserting that "Charge
herein stated or implied are substantiated," in the face of the objectiv
facts and the deliberately omitted facts that they had been withdrawn b
him or formally dismissed by the NLRB and other official agencies
" According to Respondent Personnel Director Byrne, from 1962-196
there were some 1,300 grievances filed by employees in two of the bargair
ing units at its West Roosevelt Road plant alone Moore conceded on cross
examination that he was "well aware" that he "had no contractual right t
a meeting with [Sunbeam President ) Mr Gwinn ," but that he neverthele,
at no time withdrew his demand to confront him personally Cf N L R B
Illinois Tool Works, 153 F 2d 811, 815-816 (C A 7), Norfolk Conveyor, 15
NLRB 464
" Administrative Procedure Act, 5 U S C Secs 556(d) and 706(2)(E
Consolidated Edison Co of New York, Inc v N L R B , 305 U S 197, 22S
230, Willapoint Oysters, Inc v Ewing, 174 F 2d 676, 690, 691 (C A 9
NLRB v Bell Oil &GasCo,98F2d406,410(CA 5),NLRB v A
Abell Co , 97 F 2d 951, 958 (C A 4)
"Administrative Procedure Act, supra, in 27, Sec 556(d), Consolidate
Edison Co v N L RB ,supra, fn 28, Blue Flash Express, Inc , 109 NLR
591, 592, Attorney General 's Manual on the Administrative Procedure Ai
75(1947)
SUNBEAM CORPORATION
tary and testimonial, the weight which they
deserve-that Respondent's termination of Moore
was because of protected concerted activity as al-
leged.
Respondent urges that Moore's described actions
did not constitute concerted activities within the
ambit of the Act. Under the record here made, this
contention appears to be sound.
General Counsel supports his position to the con-
trary with several arguments and evidentiary items,
which will be briefly considered. To begin with,
General Counsel points to Moore's alleged
assistance or advice to fellow -employees on unre-
lated matters and occasions , some in the somewhat
distant past . Even if true, these do not establish
concerted activity here. Next, it is urged that if
Moore had succeeded in his endeavors on behalf of
himself , it would or could have had impact on
others . This argument, however , among other
things places the cart before the horse. First, it as-
sumes the legality of Moore's activity-the core is-
sues here involved ; next , it speculates regarding a
possible effect of a possible outcome of Moore's ac-
tions; further , it assumes that Moore 's actions were
propelled by concern for that "mutual aid or pro-
tection" secured by the Act, and not simply by self-
concern or aggrandizement . It seems clear from the
wording of Moore's August 11, 1967, letter to Sun-
beam President Gwinn demanding a personal meet-
ing, that Moore is interested in himself alone; there
is even no suggestion that any other employee is
acting with him , nor that Moore is a spokesman for,
nor even a self-appointed vindicator of the rights of
others. The entire letter is cast in the first person
singular throughout . It is clear that its author's con-
cern is for himself exclusively, arising out of a per-
sonal dissatisfaction involving himself alone. His is
3° Miss Thomsen testified that when Moore accosted her at work on Oc-
tober 2 and handed her his "petition " under the circumstances described,
he asked her to "read it on my [Thomsen 's] break and let him know what I
thought of it ", later that day, when she again encountered Moore, who said
he "hoped he [ Moore] didn 't get me [Thomsen ] in any trouble as a result
of the letter ," she told Moore that she thought part of it was "a little bit
strong where if you subscribe to his belief , you should stop buying
Sunbeam products I couldn 't see any harm in the rest of the petition "
This can hardly be considered to constitute "concerted activity" on Miss
Thomsen 's part in association with Moore
31 Thus, James H Daniel, employed by Respondent since 1965, and an
acquaintance or friend of Moore, as well as his carpool companion,
testified as General Counsel 's witness that when Moore told him around
October 1967 that " if he [Moore ] couldn ' t get satisfaction about
his problem , that he would march he told me had taken a test for lead-
man, that he had passed and that a job that he was supposed to take, they
didn't give it to him I [Daniel ] didn't- I couldn 't give him any advice
on anything but I talked to him about it, you know I told him that I felt
that if he had passed the test, had taken a test and passed it, f felt like, you
know , that he deserved the job " (Emphasis supplied ) Also according to
Daniel , he received a copy of Moore's petition by mail at home "after he
[Moore ] had marched and he subsequently told Moore " that I was sup-
porting him " ( Emphasis supplied If by "marched " Daniel referred to
Moore's picketing , it was after Moore's employment had been terminated
on October 17 ) Daniel conceded he had "no personal knowledge what-
soever" as to the facts involved in Moore's case On his testimony I have
great difficulty in regarding his reactions to Moore's situation as more than
an expression of personal sympathy for Moore , short of "concerted activi-
ty" with the latter Another General Counsel witness , Will C Lewis, for-
merly a union -shop committeeman to steward, testified that "about" the
time Moore was "on the streets" he requested Lewis' support , in response
to which Lewis told him that " I [Lewis] felt that he [ Moore] had the
963
no voice with or for others, but an unaccompanied
solo. Moore's subsequent incorporation of that solo
into a subsequent "petition" authored and dis-
seminated by himself alone, wherein for the first
time he occasionally editorializes with a "we," is in-
sufficient without more to orchestrate it, the "peti-
tion" continuing to be slanted to his personal situa-
tion. If mere possibility of impact on others who
might be affected by individual action were the test
of "concerted" activity, distinction between in-
dividual and concerted activity would be effectively
erased. - _ -
It is further contended in this aspect by General
Counsel that Moore's action in handing a copy of
his "petition" to Miss Thomsen under the circum-
stances described establishes, or supports the
characterization of, his action as "concerted activi-
ty." I cannot agree. In my opinion, the fact that he
handed a copy of his "petition" to Miss Thomsen
and briefly asked for her opinion concerning it is
insufficient to constitute concerted activity. Miss
Thomsen in no way joined in his action, nor was
Moore speaking to management on her behalf.30
The same may be said in regard to the other items
put forward in the attempt to make out "concerted
activity"-they would appear to fall short of
establishing activity of that nature through the sub-
stantial credible evidence which is essential.31 Mere
expression by a few employees (out of a factory
population of thousands) of personal empathy or
commiseration with another employee in a sup-
posed personal problem of the latter, does not
equate with or establish protected, concerted activi-
ty. 32
Upon the record as a whole, it is found that
under the particular circumstances here presented
it has not been established by the required substan-
privilege to take it to the courts or where he thought that he would get the
action I had no way of giving him legal advice because I was not an at-
torney I told him that I felt that he was right and I would come to
the courts and tell the court that I felt that he was right I thought that
the petition was well written and had merits " Finally, employee John En-
glish testified that about 2 weeks after receiving a copy of Moore 's "peti-
tion" by mail and about a week after Moore stopped handbilling, he mailed
to Moore a postcard in the wording suggested by Moore in the " petition,"
signed by English 's wife as well as by English , indicating "support"for
"your [i e, Moores] cause" and to "refrain from making or causing the
purchase of any Sunbeam Appliances until I know that justice has been
served "( Emphasis supplied )
There is nothing , however , in any of these personalized and Moore-re-
lated expressions of sympathy by a minuscule number of fellow-employees
out of a huge plant population- there is no evidence of even so much as a
second postcard to Moore expressing support in connection with his per-
haps 3,500 distributed copies-to indicate anything other than personal
sympathy , commiseration, or support to Moore individually in connection
with Moore's supposed individual problem In my opinion, to attach addi-
tional or broader significance to these isolated indications of sympathy for
Moore would be to indulge in speculation to enhance their true nature and
quality Upon the record as an entirety , I am persuaded that they fail by
substantial credible proof to establish "concerted activity" within the
meaning of the Act
32 While not determinative , it is also noted that Respondent 's Employee
Relations Manager Hosek credibly testified that to his knowledge Moore at
no time "endeavor [ed] or solicit [ ed]" the Company to take any action on
behalf of any employee or employees other than himself and that credited
testimony of Union Representative Janas similarly establishes without ex-
ception the grievances filed by Moore were "personal to him," with no in-
dication of association of any other employees therewith
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tial credible proof that Moore here engaged in pro-
tected, concerted activity within the meaning of the
Act.33
There are additional reasons why it would seem
that General Counsel cannot prevail in this
proceeding; namely, the existence of an applicable
grievance -arbitration machinery to which unit em-
ployees are contractually bound,34 and which has
not been pursued to arbitration ; 35 as well as the
seemingly unprotected character of the activities
resulting in the discharge , considering the elected
methodology of accomplishment of the particular
personal objective .36 It was indicated at the hearing
that there is pending in the United States District
Court an action by Moore against the Union as well
as his employer, under Section 301 of the Act and
Title VII of the Civil Rights Act of 1964. In that
case and forum, the contentions with which Moore
appears to be basically concerned may presumably
be fully aired . The determinations and disposition
in the instant proceeding are necessarily limited to
issues arising under the National Labor Relations
Act, which circumscribe the outermost boundaries
of inquiry and power here.
Under all of the circumstances, it is found that it
has not been established by a fair preponderance of
the substantial credible evidence on the record as a
whole that Respondent's described suspension and
termination of the employment of the Charging
Party were, in the specific situation here involved,
because he engaged in concerted activity protected
under the Act as alleged in the complaint.
Upon the foregoing findings and the entire
record, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Assertion of jurisdiction herein is proper.
3. The rules and requirements contained , in
Respondent's "Employee Handbook" effective
February 1948, revised November 1960, pertaining
to solicitation, distribution, and petitioning by
Respondent's employee, improperly and unlawfully
restrict (a) solicitation by Respondent's employees
in Respondent's plant on said employees' nonwork-
ing time and (b) distribution of documents by said
employees on their nonworking time in nonwork
areas of Respondent's plant.
4. It has not been established by a fair preponde-
rance of the substantial credible evidence that
Respondent's October 4, 1967, suspension and Oc-
tober 17, 1967, termination of employment of
James A. Moore, Jr., Charging Party herein, were,
as alleged in the complaint herein dated November
18, 1968, as amended at the hearing, in violation of
Section 8(a)(3) or (1) of the Act.
5. The unfair labor practice referred to in Con-
clusions of Law 3, supra, affects commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice by maintenance of an im-
proper no -solicitation , no-distribution rule in its
employee handbook as described , I shall recom-
mend that it be required to cease and desist
therefrom and take certain affirmative action (con-
sisting of the abrogation thereof and the posting of
the usual notice to employees) uniformly required
in instances involving such violation of the Act.
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record,
and pursuant to Section 10(c) of the Act, I make
the following:
s' Cf N L R B v Local Union No 1229, IBEW (Jefferson Standard
Broadcasting Co ), 346 U S 464, 474-475, Indiana Gear Works, a Division
of the Buehler Corporation v N L R B , 371 F 2d 273 (C A 7), American
Art Clay Company, Inc v N LRB, 328 F 2d 88 (CA 7), N L R B v
Gibbs Corporation , 284 F 2d 403 (C A 5), N L R B v Illinois Bell
Telephone Co , 189 F 2d 124 (C A 7), cert denied 342 U S 885, Joanna
Cotton Mills Co v N L R B, 176 F 2d 749, 751-752 (C A 4), Norfolk
Conveyor, supra, Continental Manufacturing Corp , 155 NLRB 255, Walls
Manufacturing Company, Inc , 137 NLRB 1317, enfd 321 F 2d 753
(C A D C ), cert denied 375 U S 923, cases cited infra, fn 34-35
" Cf N L R B v Allis-Chalmers Mfg Co, 388 U S 175, N L R B v
Washington Aluminum Company, 370 U S 9, 17 (concerted activities by
employees ordinarily deemed protected unless "unlawful, violent or in
breach of contract" or "indefensible "), Atkinson v Sinclair Refining Com-
pany, 370 U S 238, 246, N L R B v Tanner Motor Livery, Ltd, 349 F 2d
1, 4-5 (C A 9), N L R B v Illinois Bell Tel Co,supra, Norfolk Conveyor,
supra, Arlan's Department Store of Michigan Inc, 133 NLRB 802 Unlike
Tanner (supra, Board decision on remand , 166 NLRB 551), such a conclu-
sion would not be "offensive to public policy" (id) in view of General
Counsel's stipulation that Respondent 's actions against the employee here
were not for racial reasons Lacking such a compelling public policy ele-
ment , no reason is apparent why the contractual grievance -arbitration
machinery should not be permitted to function as bargained and agreed
See United Steelworkers of America v Warrior & Gulf Navigation Co , 363
U S 574 Additional considerations impelling toward this conclusion are
the derogation of union authority and contractual integrity which would
otherwise result , Respondent's formally announced intention to hold the
Union liable, the contractual rights of more senior leadmen, and Respon-
dent 's potential contractual liability to them in case of departure by
Respondent from the requirement of job assignment by seniority, and
General Counsel's refusal to issue a complaint against the Union Cf
Tanner, supra, at 4-5 Further unlike Tanner, protected , concerted activity
is not here involved
's Cf Vaca v Sipes, 386 U S 171, Port Drum Company, supra , and cases
there cited and discussed
" Spacious though the Act's cupola be, there is no room under it for
every action by an employee in attempted vindication of supposed or even
real rights N L R B v Washington Aluminum Company , supra Cf
N L R B v Local Union No 1229, Electrical Workers (Jefferson Sandard
Broadcasting Co ), supra, N L R B v Blue Bell, Inc , 219 F 2d 796 (C A
5), Farmers Co-Operative Company v N L R B, 208 F 2d 296 (C A 8),
Hoover Company v N L R B , 191 F 2d 380 (C A 6), Maryland Drydock
Company v N L R B, 183 F 2d 538 (C A 4), Joanna Cotton Mills Co v
N L R B , supra, N L R B v Illinois Tool Works, supra, N L R B v Con-
denser Corporation of America, 128 F 2d 67, 77 (C A 3), N L R B v Union
Manufacturing Company, 124 F 2d 332, 333 (C A 5), Norfolk Conveyor,
supra, Norge Division , Borg-Warner Corporation, 155 NLRB 1087, Walls
Manufacturing Co , Inc , supra, The Patterson-Sargent Company, 115
NLRB 1627, Harnischfeger Corporation , 9 NLRB 676, 686, quoted with
approval in U A W v Wisconsin Employment Relations Board, 336 U S
245, 256, Prosser, Torts 720-739 and 745-756 (2d ed 1955), proviso to
Sec 8 ( b)(4)(B) ("truthfully" advising public)
SUNBEAM CORPORATION
RECOMMENDED ORDER
Respondent Sunbeam Corporation, its officers,
agents, successors , and assigns , shall:
1. Forthwith cease and desist from continuing to
include or maintain in effect in its employee hand-
book or elsewhere or otherwise, or to issue any em-
ployee handbook or other written or oral communi-
cation, containing any rule or requirement im-
properly prohibiting its employees from: (a) engag-
ing in solicitation on Respondent's premises at times
which are nonworking times of both the employees
soliciting and those being solicited; (b) distributing
literature in nonworking areas during nonworking
time.
2. Take the following affirmative actions neces-
sary to effectuate the policies of the Act:
(a) Post at its Plant 2 at 5400 West Roosevelt
Road, Chicago, Illinois, copies of the attached
notice marked "Appendix."37 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 13, after being duly signed by Respondent's
authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."'
Insofar as the complaint, dated November 18,
1968, as amended at the hearing, alleges violations
of the Act not herein found, said complaint is
hereby dismissed.
Jl In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading " Posted by
Order of the National Labor Relations Board" shall be changed to read "-
Posted Pursuant to a Judgment of the United States Court of Appeals En-
forcing an Order of the National Labor Relations Board "
965
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL forthwith rescind the rules in our
"Employees Handbook" relating to solicita-
tion, distribution, and petitioning, to the extent
that they improperly restrict our employees
from soliciting in our plant on nonworking
time ; and to the extent that they unlawfully
prohibit distribution of literature in our plant
on nonworking time in nonworking areas.
SUNBEAM CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 219 South Dearborn Street, Room 881,
Chicago, Illinois 60604, Telephone 312-353-7572.
"In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "