Switchcraft, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1979

241 N.L.R.B. 985 (N.L.R.B. 1979)

SWITCHCRAFT, INC.
Switchcraft, Inc. and Local 1031, International Broth-
erhood of Electrical Workers, AFL-CIO. Case 13
CA-- 16963
April 18, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PFN II.O
On December 5, 1978, Administrative Law Judge
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter, counsel for the General Councel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)( I) of the
Act by promulgating an unlawful no-solicitation rule
and by interrogating employees about the union ac-
tivity of alleged discriminatee Marlene Salinas. How-
ever, contrary to the Administrative Law Judge, we
find that Respondent's discharge of Marlene Salinas
violated Section 8(a)(3) of the Act.
The record reveals that beginning about 1969 Re-
spondent periodically posted a no-solicitation rule
which prohibited any form of solicitation between
one employee and another during working hours un-
less authorized by the personnel department. Appar-
ently permission has been granted over the years for
various charity fund raising drives and for collections
upon the death of an employee. Respondent's vice
president for industrial relations, Charles Giesow,
also admitted that baseball pools have been con-
ducted without such permission. Giesow conceded
that as recently as the 1977 World Series he "closed
his eyes" to unauthorized activity among employees
in connection with such pools.
The record further reveals that on the morning of
her discharge Salinas was told by Foreman Edward
Rapacz to "quit doing all this organizing and bother-
ing people from working during working hours." Lat-
er that same day, Rapacz again spoke to Salinas and
We hereby correct the Administrative Law Judge's findings that employ-
ees punch out their timecards at 5 p.m., and that Salinas was observed
leaving her machine "some time after 4:30 p.m" The correct time references
should be 4 p.m. and 3:30 p.m., respectively.
warned her a second time not to engage in union ac-
tivities on company time. Still later that day, Rapacz
caught Salinas asking other employees to sign a peti-
tion. He thereupon took her to Giesow's office, where
he told Giesow that Salinas was the girl who persisted
in "going around getting the people to sign union pe-
titions during working hours." Giesow explained to
Salinas the company rule on solicitation and then dis-
charged her.
As mentioned previously, the Administrative Law
Judge found Respondent's no-solicitation rule unlaw-
ful. In so doing, the Administrative Law Judge relied
on several Board decisions finding that use of the
words "working hours" renders a rule susceptible to
the interpretation that solicitation is prohibited dur-
ing all business hours and therefore unduly restricts
employees' Section 7 rights.2 The Administrative Law
Judge also noted that an ambiguous rule can be cured
by showing that the rule was communicated to em-
ployees in such a way as to convey clearly an intent to
permit solicitation during breaktime or other periods
when employees are not actively at work.' However,
the Administrative Law Judge not only found Re-
spondent's rule unlawful on its face, but also that it
was communicated to employee Salinas by Foreman
Rapacz without clarification.
Notwithstanding these findings, the Administrative
Law Judge found that the Salinas discharge was law-
ful. First, the Administrative Law Judge relied on our
decision in Sequoyah Spinning Mills, Inc.,' in support
of his conclusion that Respondent's tolerance of a
baseball pool was not sufficient evidence to establish
that Respondent discriminatorily enforced its no-so-
licitation rule against Salinas because of her union
solicitation. In this connection the Administrative
Law Judge observed that "Board rules cannot always
be mechanistically applied," and that employees do
not have "license to freely engage in whatever
amount of outside activity they may wish during their
work time." Furthermore, the Administrative Law
Judge concluded that in any event Salinas was not
terminated for violating the rule as such but rather
for failing to heed two warnings to stop soliciting and
for interfering with production by soliciting employ-
ees during working hours.
The Board has long held that a discharge for a
violation of an unlawful rule is itself unlawful.) In the
instant case the Administrative Law Judge's apparent
2 See Essex Inrernational, Inc., 211 NLRB 749 (1974)., Chairman Fanning
and Member Jenkins would also find the rule unlawful for the reasons set
forth in their dissent in Essex International Inc., supra. hut they recognize
that decision as binding on them until it is overruled.
See Essex International. Inc. supra, see also McBride's of Naylor Road.
229 NLRB 795 (1977).
194 NLRB 1175 (1972) (Member Jenkins dissenting).
I See Stoddard-Quirk Manujircturing Co.. 138 NLRB 615 (1962).
241 NLRB No. 154
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion that Salinas was discharged for insubordi-
nation rather than for violating the rule is both illogi-
cal and contrary to the record. Respondent's vice
president of industrial relations, Charles Giesow, tes-
tified that Salinas was discharged for violating the
company's no-solicitation rule, and we see no reason
for assigning a different reason for the discharge from
that given by Respondent's own witness, particularly
when that witness is the individual who effected the
discharge. Indeed, even if the Company had at-
tempted to characterize Salinas' conduct as insubor-
dinate, one could not ignore the fact that her "insub-
ordination" stemmed from her refusal to submit to an
unlawful rule.
Nor do we find support in the record for the Ad-
ministrative Law Judge's suggestion that Salinas' dis-
charge was lawful because her solicitation interfered
with production. Indeed, the record is unclear as to
whether the employees who were solicited were work-
ing or even at their workstations when the solicitation
took place. Although the Administrative Law Judge
apparently considered soliciting during working
hours as an ipsofacto interference with production, in
fact the Board requires an employer to show with
particularity how such conduct interfered with pro-
duction.6 No such showing was made here.7
Accordingly, as we have concluded in this case that
Respondent discharged Salinas for disobeying an un-
lawful no-solicitation rule, and we also find that the
discharge violated Section 8(a)(3) and (1) of the Act.8
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 1031, International Brotherhood of Elec-
trical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, Respon-
dent committed unfair labor practices in violation of
Section 8(a)(l) of the Act:
(a) Promulgating, maintaining, and enforcing a
rule prohibiting any form of solicitation between em-
6 See The Singer Companyv, 220 NLRB 1179 (1975); Daylin. Inc., Discount
Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972): The
J. L. Hudson Company, 198 NLRB 172 (1972): Selwyn Shoe Manufacturing
Corporation. 172 NLRB 674 (1968).
The Administrative Law Judge's reliance on Sequoyaah Spinning Mills.,
Inc., supra, is misplaced. There the Board majority held that a single instance
of a charitable solicitation was insufficient to establish that a lawful rule was
discriminatorily applied against a union solicitation. Here we have a baseball
pool solicitation rather than a charitable solicitation, and we have an unlaw-
ful rule rather than a lawful one.
8 In passing, we find it unnecessary to adopt the Administrative Law
Judge's comments concerning Salinas' alleged participation in the distribu-
tion of a leaflet to employees after the first day of the instant hearing. In our
view this matter is irrelevant to the issues raised by the complaint herein.
ployees during working hours unless authorized by
the personnel department.
(b) Interrogating employees without observing all
the safeguards established by the Board and the
courts.
4. By discharging Marlene Salinas on October 6,
1977, and thereafter refusing to reinstate her for en-
gaging in union and protected concerted activities,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (I) of the
Act.
THE REMEDY
Having found that Respondent has engaged in un-
fair labor practices, we will order that Respondent
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act. And,
as the unfair labor practices committed by Respon-
dent are of a character striking at the core of employ-
ees' rights safeguarded by the Act, we shall order that
it cease and desist from in any other manner infring-
ing upon rights guaranteed in Section 7 of the Act.
It has been found that Respondent, in violation of
Section 8(a)(3) and (1) of the Act, discriminatorily
discharged employee Salinas. It shall therefore be or-
dered that Respondent offer to employee Salinas im-
mediate and full reinstatement to her former, or sub-
stantially equivalent position, without prejudice to
her seniority or other rights and privileges previously
enjoyed, and make her whole for any loss of earnings
suffered by her by reason of Respondent's discrimina-
tory conduct. Such backpay is to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be com-
puted in accordance with Florida Steel Corporation,
231 NLRB 651 (1977). 9
We shall also order that Respondent preserve and,
upon request, make available to the Board and its
agents all pertinent records and data necessary to de-
termine the amount of backpay due, and we shall
order Respondent to post appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Switchcraft, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing any
rule, or posting any notice, prohibiting any form of
9 See, generally, Isis Plumbing & Heating ('o., 138 NLRB 716 1962).
986
SWIT(CIIRAFI. INC.
solicitation between one employee and another dur-
ing working hours unless authorized by the personnel
department.
(b) Interrogating employees regarding union mat-
ters or activities in a manner constituting restraint
and coercion within the meaning of Section 8(a)( ) of
the Act.
(c) Discouraging activities on behalf of Local 1031,
International Brotherhood of Electrical Workers,
AFL CIO, or any other union, or other protected
concerted activities, by discriminatorily discharging
or refusing to rehire or reinstate its employees, or by
discriminating in any other manner with respect to
their hire or tenure of employment or any term or
condition of employment.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Marlene Salinas immediate and full re-
instatement to her former job or, if her former job no
longer exists, to a substantially equivalent position,
without loss of seniority or other rights and privileges
previously enjoyed, and make her whole for any loss
of earnings she may have suffered in the manner set
forth in "The Remedy" section of this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Chicago, Illinois, copies of
the attached notice marked "Appendix.""' Copies of
said notice, on forms provided by Respondent's au-
thorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
10 In the event that this Order is enforced bh a Judgment of a United
States court of appeals, the words in the notice reading "Posted bh) Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPEN L)IX
No i i(c TO ENPI)YI:IIS
P()SII) BY ORI)ER OF IilE
NAIIONAI. LAB()R RI.AII()NS B)ARI)
An Agency of the United States (iovernment
WE. Wi.l. NOt promulgate. maintain, or en-
force any rules which forbid any form of solicita-
tion between one employee and another during
working hours unless authorized by our person-
nel department.
WE WIt. OT interrogate employees regarding
union matters or activities in a manner constitut-
ing restraint and coercion within the meaning of
Section 8(a)( 1 ) of the Act.
WtI wVI.I Nol discourage activities on behalf
of Local 1031. International Brotherhood of
Electrical Workers, AFI. CIO, or any other
union. or other protected concerted activities by
discriminatorily discharging or refusing to rehire
or reinstate our employees or by discriminating
in any other manner with respect to their hire or
tenure of employment or any term or condition
of employment.
Wl: wIIl.. NOI in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer Marlene Salinas immediate and
full reinstatement to her former job or, if such
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges previously enjoyed,
and make her whole, with interest, for any loss of
earnings she may have suffered as a result of the
discrimination practiced against her.
SwI r('H('RAFI IN('.
DECISION
STATEMENI OF THE CASE
JOHN P. von ROHR, Administrative Law Judge: Upon a
charge filed on October 17, 1977, the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Regional Director for Region 13, Chicago,
Illinois, issued a complaint against Switchcraft. Inc., herein
called Respondent or the Company. alleging that it had
engaged in certain unfair labor practices violative of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act. Respondent filed an answer
denving the allegations of unlawful conduct in the com-
plaint.
Pursuant to notice, a hearing was held before me in Chi-
cago. Illinois. on April 3 and 4, 1978. Briefs were received
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the General Connsel and Respondent on May 17,
1978, and they have been carefully considered.
Upon the entire record in this case. and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FA(CI
I. ile BUSINESS O()F RSPON()ENI
Respondent is an Illinois corporation with its principal
office and plant located in Chicago. Illinois, where it is en-
gaged in the manufacture and sale of electrical components.
During the year preceding the hearing herein. Respondent
purchased and received goods and materials valued in ex-
cess of $50,000 which were shipped to it from points and
places located outside the State of Illinois. I find that Re-
spondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. tiE I.ABOR O)RGANIZAIION INVOLVED
Local 1031, International Brotherhood of Electrical
Workers. AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR I.ABOR PRACTICES
A. The Issue
The principal issue in this case is whether Respondent
discharged employee Marlene Salinas in violation of Sec-
tion 8(a)(3) of the Act. There are also two alleged indepen-
dent violations of Section 8(a)(1) of the Act.
B. The Facts
Marlene Salinas was employed by Respondent as a
punch press operator from March 1977 until October 6.
1977, at which time she was terminated.
Charles Giesow, Respondent's vice president of industrial
relations, testified that Respondent has been the target of
union organizational campaigns almost constantly for
about 20 years. Salinas became involved in an organization-
al campaign which began about 4 weeks prior to her dis-
charge on October 6. Salinas testified that at that time she
became a member of an employee organizing committee
which was formed to bring in a union. About 2 weeks later
(about 2 weeks prior to her discharge). Local 1031 of the
IBEW was contacted and started handbilling the plant. Al-
though prior to the discharge Salinas did not participate in
this activity, she remained on the organizing committee,'
signed a union card, and spoke to other employees in favor
of the Union.
The principal events leading to Salinas' discharge oc-
curred on the day of her discharge, October 6, 1977.2 There
is, however, a sharp conflict in the testimony as to what
occurred on this day. I shall begin by relating Salinas' ver-
sion.
I Initially composed of 5 employees, II employees were members of the
committee when Salinas was terminated.
2 Unless otherwise indicated all dates mentioned hereinafter refer to 1977.
Salinas' hours were from 7:25 to 4 p.m.. with a lunch-
break from 12 to 12:35 p.m. According to Salinas, she was
engaged in talking to two employees in favor of the Union
during the lunchbreak when her foreman. Edward Rapacz.
came up to the group. Salinas testified that at this time, "I
felt somebody standing behind me and I turned around and
there Ed was." In any event, Rapacz proceeded to hand
these employees their paychecks and walked away without
any comment.
Although there was considerable testimony as to the
punching out procedure at the end of the shift, I have care-
fully considered all this testimony and find as follows: A
bell rings at 3:55 p.m. and again at 4 p.m. The employees
turn off their machines when the first bell rings. During the
5-minute interim the employees engage in cleanup and also
punch out their production cards. When the bell rings at 5
p.m.. the employees punch out their timecards at the time-
card clock. The production punch-out clock is separate
from and some distance away from the timecard clock.
Continuing with Salinas' testimony, she testified that
when the 3:55 bell rang she cleaned her machine and then
went over to punch out her production card. As she then
started to walk toward the punch-out timecard clock she
passed Rapacz' office and observed him reading a newspa-
per. She continued past two or three machines and then
encountered a group of four employees, including employee
Sylvester Szynkowski. At this point Salinas asked Sylvester
(who she said she had heard was against the Union) if he
and the others were working overtime. When they re-
sponded that they were not. Salinas told them they would
not have to wait to be asked for overtime if they had a
union. She then asked Sylvester if he had signed a union
card. At this point Rapacz came up and told her to accom-
pany him to the office. She then followed Rapacz to the
office, which was some distance away, "practically run-
ning," she said. Giesow was in the office when they arrived.
According to Salinas. she was in the office a very short time.
Rapacz stated. "This lady has been doing union work on
company time." Giesow asked. "Is this true?" Salinas re-
sponded. "Yes. if you mean talking to people." Giesow then
stated. "We just can't use your type in our factory," where-
upon he gestured that she go. With this she was terminated.
I turn now to the version of Respondent witnesses con-
cerning the events which led to Salinas' termination. Rela-
tive to the asserted reason for which she was discharged.
Foreman Rapacz testified that about 2 or 3 weeks prior to
October 6 it came to his attention that Salinas was leaving
her machine and talking to other operators while they were
working. He called her to the office at this time, and in the
presence of Assistant Foreman Robert Rodriquez, cau-
tioned her not to leave her machine while she was working
and not to bother other employees while they were work-
ing. Salinas denied that she had ever been warned in the
manner or on the occasion as aforesaid, testifying that
Rapacz had spoken to her on only one occasion prior to her
discharge concerning absenteeism. I credit the testimony of
Rapacz concerning the incident which was corroborated by
Rodriquez. I shall have further comment on the credibility
of Salinas later in this Decision.
It was about 10:30 a.m. on October 6, according to
Rapacz, that an employee. Mrs. Rios, complained to him
988
SWII( t11(RAFF IN(C
that Salinas was bothering her about signing a petition: she
stated that she did not want anything to do with it, and that
Salinas was calling her names. Rapacz testified that he
thereupon went to Salinas and told her "to quit doing all
this organizing and bothering people from working during
working hours." Further, according to Rapacz it was in the
early afternoon of the same day, about 2:30 a.m., after it
came to his attention that she again engaged in similar ac-
tivities. that he again spoke to Salinas and warned her again
not to engage in union activities on company time. Rapacz
did not testify to the details of the second warning and the
events leading to it. although the record reflects that this
was perhaps due to interruption in his testimony and a fail-
ure to pose the appropriate questions. In any event, upon
the entire record in this case. I credit the testimony of
Rapacz that he did give Salinas a second warning on the
afternoon of October 6.'
Salinas' termination. according to Rapacz. ultimately re-
sulted because of her engaging in similar conduct for the
third time that day. His testimony concerning this incident
and the discharge which resulted was as follows: Sometime
after 4:30 p.m. but before the first bell had rung, he ob-
served Salinas leave her machine and walk over to the ma-
chine where employee Sylvester Szynkowski was working.4
She handed Szynkowski a paper which he signed. Observ-
ing the paper which had some names on it, Rapacz asked
Szynkowski what he was doing. The latter answered that he
was signing a paper for Salinas. Rapacz thereupon told Sa-
linas. "Marlene, you are in serious trouble now." Leaving
Salinas for the moment, he returned to his office, called
Charles Giesow. Respondent's vice president of industrial
relations, and informed him that he had previously warned
Salinas about "walking around during working hours sign-
ing people up," and that he had just caught her again. Gie-
sow told him to bring Salinas to the office. Following these
instructions, he brought Salinas to Giesow's office. As with
other conflicts in the testimony concerning the entire inci-
dent, Respondent's version of the ensuing conversation dif-
fers from that of Salinas. iesow testified that Rapacz
stated, when Rapacz and Salinas entered his office, that this
was the girl who persisted in organizing on company time
notwithstanding his warnings that she not do so. He asked
her if this was true and she replied yes. Upon explaining
that it was permissible for her to engage in this activity
during her nonworking time, he terminated her with the
words "I am sorry but I am going to ask you not to come
back to Switchcraft."' The testimony of Rapacz corrobo-
rated that of Giesow concerning this conversation. In addi-
tion, Giesow testified that just prior to Rapacz bringing Sa-
linas to the office he asked his secretary. Irma Wetsell. to
stand in the doorway to be a witness to the conversation.
Testifying that she did so, Wetsell substantially corrobo-
rated the testimonies of Giesow and Rapacz.?
'The General (Counsel introdluced Rapacz' affidavit in evidence for m-
peachment purposes. Although in this affidavit his second conversation with
Salinas is related in some detail, I do not rely on the statements contained
therein insofar as they expand upon his testimony at the hearing.
4 Rapacz testified that the machine which Salinas operated was 5 or 6 feet
from his office, and that he made the aove obsersation from his office.
' Giesow credibly denied telling Salinas that he could not use her tIpe In
the plant.
6 Salinas testified that Wetsell was not standing In the doorwav during the
discharge conversation. I find to the contrary.
C. Ineri'retncc Wilt RespondcnI 'ilne.se.v ,and Board
Processes
Before proceeding further with the merits of this case, I
think it appropriate to relate an incident concerning Sali-
nas' involvement in an incident involving certain interfer-
ence with Respondent's witnesses prior to their giving testi-
mony on April 4, 1978. While not finally determinative to
the credibility issues which I must herein resolve. I do think
it is relevant to the entire background involved in this pro-
ceeding.
I shall begin by identiftying two individuals who were also
involved in the incident. One is Madeline Chang, an em-
plovee of Respondent for over 2 years. ('hang is a friend of
Salinas' and was called by the General Counsel to testify in
support of the allegations in the complaint pertaining to
Salinas. The other individual is Earl Tockman, an attorney
at law and a personal friend of Chang's. It should he made
clear that Tockman is not a representative of; or in any way
connected with, the Charging Union.
The hearing in this proceeding was held on 2 days, April
3 and 4, 1978. The General Counsel rested his case shortly
befbre the close of the hearing on April 3. At or about 6
a.m. on the morning of April 4, Salinas, Chang, and Tock-
man. with three other employees, appeared in front of the
gates of Respondent's plant where they proceeded to dis-
tribute leaflets to employees who were reporting to work.
Chang testified that the contents of the leaflets were drafted
and prepared by her, with the assistance of two other mem-
bers of the organizing committee. She further testified that
she personally had about 700 copies of the leaflets prepared
in Chinatown on the night before. The leaflets distributed
by the aforementioned individuals is read as follows:
Itil Alt.LE iS ON!!
Last week, we wrote letters in support of Marleen.
signed more cards, and stepped forward to testify for
her. because we knew that what was on trial was not
only Marleen's job, but our right to organize into a
union, for a paycheck we can live on and decent work-
ing conditions.
We're getting closer to bringing the union in and the
company is scared. Would you believe. on last Friday.
March 31. at 15 minutes to 4:00. in a last desparate
attempt to save themselves, the company called in 5
workers from Department 10. They scared them by
handing them subpoenas to appear in front of the La-
bor Board.
All their testimony was gone over by the company
and they were told exactly what to say. But they have
the right, not to go. even under subpoena. The com-
pany thinks they can beat us by forcing workers to lie
for them. but we will fight on and stand with Marleen.
IMPRO()I ()t'R WORKIN(i ('ONDITI()NS, REI.Y ()N OU()IR-
st.1.3 s!
Sl(iN A NION (ARt). ONl.Y WtI A NION ('AN WE MAKI
( IIAN( EiS!
Sam Gibbs, a Respondent witness who testified on April
4. credibly related the following incident which occurred
when he came to the plant in his car early on the morning
989
DI)('ISIONS OF NATIONAL LABOR RELATIONS BOARD)
prior to the hearing on that date. At the gate he was first
handed a copy of the above-described leaflet by Salinas.
Attorney Tockman then came up and asked that he pull his
car over to the side. lie did so. Tockman thereupon asked
why he "was going down to testify against Marlene." Gibbs
replied that he did not want to hurt anybody. but that he
was going down to tell the truth. Tockman then rejoined
that if he wanted to help 810 workers he should turn his car
around, go home, call in, and say that he was sick. Gibbs
then stated that he was not going down to tell lies, but that
if he followed his [Tockman'sl suggestion that would he a
lie. Tockman again asked that he go home, adding that he
just watch TV and forget about it. Gibbs ended the conver-
sation by stating that he would not do so.
Edward Gaines, who also testified as a witness for Re-
spondent on April 4, credibly related that the following
happened to him when he drove his car to the plant early
that morning. As he broached the plant gates, he was
forced to stop his car because Salinas and Tockman were
standing in the middle of the driveway entrance. He
stopped and opened the car window, whereupon he was
handed one of' the above-described leaflets. Salinas then
asked how much they [Respondent paid him to go up and
testify. Gaines responded that he was not being paid. Tock-
man then asked what the Company had said to him when
he was called to the office.7 Gaines replied that the Com-
pany did not say anything to him. Tockman continued to
question him in the same vein, but Gaines finally rolled up
his window and drove into the parking lot.'
This establishes the interference with Respondent's wit-
nesses. The conduct of the individuals involved in advising
employee witnesses not to honor subpenas and their en-
deavors to persuade witnesses not to testify must be re-
garded as a serious interference with Board processes. Al-
though undoubtedly this type of conduct would constitute a
violation of Section 8(a)( I) of the Act if an employer were
involved, there is no equivalent provision in the Act that is
applicable to employees and other individuals. However,
and although Salinas' participation in the above-described
conduct might arguably be considered as a bar to any reme-
dial order of reinstatement, I need not decide this question
in view of my findings on the merits of her case.
D. Additional Facts; Conclusions as to Salinas
I have heretofore related the versions of Salinas and of
Respondent's supervisors concerning the events of October
6, 1977, which led to her termination that day. On the en-
tire record in this case, from my observation of the wit-
nesses, and particularly for the following reasons. I credit
the testimonies of Respondent's witnesses over the testi-
mony of Salinas. In the first place, it will be recalled that at
or about 4:30 p.m. on October 6, Rapacz observed Salinas
soliciting employee Szynkowski to sign a paper which had
As noted hereinafter, Gaines and other employees were called into the
office where they signed a statement for Giesow. App;,rentl) Salinas and
others learned of this incident.
I I need not relate Tockman's testimony. which I do not credit to the
extent that it differs from the testimonies of Gibbs and Gaines the latter two
or whom appeared truthful witnesses. My observations concerning Tock-
man's credibility are stated in the record.
some names on it. Salinas identified this paper as being a
petition which she asked employees to sign, the purpose of
which was to indicate that the signators wished to become
members of the organizing committee.' Salinas specifically
testified that the only time she solicited employees to sign
the petition was before working hours on October 6, and
that she did not engage in any such activity during working
hours. This testimony was credibly controverted by five em-
ployees. namely Edward Gaines, Michael Malone, Sam
Gibbs, James Morris, and Jose Orjoles, all of whom testified
that Salinas broached them to sign the petition during
working hours on October 6.'? Significantly, and which
must have some bearing upon their impartiality, Gaines,
Malone, and Morris testified that they signed union autho-
rization cards after Salinas' termination and have thus indi-
cated that they' were prounion employees. Apart from my
observation of the witnesses, a second reason for crediting
Respondent's version over that of Salinas is the fact, as has
been heretofore related, that the testimony of Respondent
concerning the events of October 6 was corroborated by
two or more witnesses. I cite one particular example of this
testimony which inmpressed me as being particularly con-
vincing. Although Salinas denied that Rapacz left her to
make a telephone call before taking her to the office prior to
her termination, Rapacz and Giesow corroborated each
other that the call was made and received. I simply do not
believe this testimony to have been fabricated. Accordingly,
and in view of the credibility findings stated,' I find that
Rapacz found Salinas to have engaged in soliciting two
times during her working time before taking her to the of-
fice on October 6, that each time he warned her, and that he
did not take her to the office until he found her engaged in
similar conduct during working hours for the third time. I
further find that Rapacz also spoke to Salinas about not
leaving her machine and bothering other employees about 2
or 3 weeks prior to her discharge.
Since about 1969, Respondent has had in effect a no-
solicitation rule, periodically posted but apparently not at
all times on the bulletin boards, which prohibits any form
of' solicitation between one employee and another during
working hours unless authorized by the personnel depart-
ment. The record reflects that pursuant to the rule, i.e., with
permission being granted, collections were taken from time
to time for such purposes as the death of an employee or for
the Crusade of Mercy (UGF). Apart from the foregoing,
the General Counsel also sought to establish that other so-
licitation took place during working time without company
permission. To this end, Giesow finally conceded that while
he did not condone baseball pools, he did close his eyes to
them on one or two occasions during the 1977 World Series.
' As heretofolbre noted, Salinas denied that she was soliciting Szynko ski to
sign the petition at the time Rapacz came up to them. However, she did
concede that at the time she spoke to Szynkoski she did have the petition
on her person. She said she later destroyed it.
l Indeed. Gaines credibly testified that, when Salinas broached him to
sign the petition while he was running a machine on October 6. he told her
that the Company could fire her for going around to have it signed.
X I recognize and have considered that there were also certain inconsisten-
cies in Respondent's testimony, particularly relating to aspects of the case
other than the events of October 6. Nevertheless, and for the reasons stated.
I adhere to the credibility findings made above At the very least, I might
add, the General Counsel has not borne his burden of proof that I credit his
witness over those of Respondent.
990
SWITCHCRAFT. INC.
Turning to my conclusions with respect to Salinas, I rec-
ognize the General Counsel's argument which is based on
the line of cases dealing with the discriminatory application
of no-solicitation rules as well as the discriminatory appli-
cation of any company policy in general. However, and
apart from the question of the legality of Respondent's rule
which is discussed hereinafter, I think it is generally recog-
nized that Board rules cannot always be mechanistically
applied in any given situation. I believe this to be a case in
point. Thus, while here there were rare or isolated occasions
where Respondent has tolerated baseball pools, I would not
hold this as giving employees license to freely engage in
whatever amount of outside activity they may wish during
their working time. As has been often stated, working time
is for work. In the instant case, on the day she was dis-
charged, Salinas was given two warnings to cease soliciting
other employees during working hours. She chose to ignore
these warnings and instead engaged in the same conduct for
the third time on the same day. For this she was termi-
nated. Under these circumstances, I find that Salinas was
discharged for cause. See SequoVah Spinning Mills, 194
NLRB 1175 (1972). Moreover, I do not think that Respon-
dent's rule, whether lawful or unlawful, plays any decisive
factor in reaching this conclusion. I find this to be so be-
cause the record as a whole reflects that Salinas' termina-
tion was not predicated upon a violation of the rule as such,
but rather because her conduct in soliciting employees dur-
ing her working hours and during the working hours of the
employees whom she solicited resulted in an interference
with production. Absent an unlawful motive, which I find
has not been established, her discharge for this reason was
not pretextual but was for cause. Accordingly, and for all
the reasons aforesaid, I find that the requisite preponder-
ance of the evidence does not establish that Respondent's
termination of Salinas was violative of Section 8(a)(1) and
(3) of the Act. It is recommended, therefore, that this alle-
gation be dismissed.
E. The 8(a)(I) 'iolation of the Act
As previously noted. Respondent has a no-solicitation
rule which prohibits any form of solicitation between em-
ployees during working hours unless authorized by the per-
sonnel department. In finding a similar rule to be invalid,
the Board in McBride's of Naylor Road, 229 NLRB 795
(1977), pointed out that the use of the term "working
hours" renders a rule invalid as it unduly restricts the em-
ployees' Section 7 rights because it is primafacie susceptible
of the interpretation that solicitation is prohibited during all
business hours.' Although the Board further held that the
ambiguity in the rule could be cured by showing through
intrinsic evidence that the working hours rule was commu-
nicated or applied in such a way as to convey an intent
clearly to permit solicitation during breaktime or other peri-
ods when employees are not actively at work, the record
reveals no uch clarification here. It is found, accordingly,
that Respondent's no-solicitation rule was promulgated in
violation of Section 8(a)( 1 ) of the Act.
It is undisputed that shortly after Salinas' termination,
five employees were called into Rapacz' office where, after
I See also Esse.x International. Inc. 211 NLRB 749 (1974).
being questioned by him, they signed the following state-
ment:
I am a witness that Marlene Salinas has approached
me on Union Business during working hours. Also I
am signing this statement of my own free will. There
was no force used or any threats made or promises to
get me to sign this statement.
Two of the employees who signed the statement (Gaines
and Gibbs) were called in together, the others individually.
The only testimony concerning the circumstances of the in-
terview with Rapacz at the time the statement was taken
came from Gaines and Gibbs. Both testified that Rapacz
asked if Salinas had spoken to them about the Union on
company time and if they would be willing to sign a state-
ment. At the hearing, the General Counsel amended the
complaint to allege that the interviews of the employees in
the manner aforesaid was in violation of Section 8(a)( ) of
the Act.
In Johnnie's Poultry Co. and John Bishop Poult Or Co..'
the Board enunciated certain safeguards designed to mini-
mize the coercive impact of an employer's interrogation of
employees while interviewing them in preparing a defense
for trial of case, stating as follows:
Thus, the employer must communicate to the em-
ployee the purpose of the questioning, assure him that
no reprisal will take place, and obtain his participation
on a voluntary basis: the questioning must occur in a
context free from employer hostility to union organiza-
tion and must not be itself coercive in nature: and the
questions must not exceed the necessities of the legiti-
mate purpose by prying into other union matters, elic-
iting information concerning an employee's subjective
state of mind, or otherwise interfering with the statu-
tory rights of employees. When an employer trans-
gresses the boundaries of these safeguards. he loses the
benefits of the privileges.
The burden of establishing that the above safeguards
have been met is upon the employer, here Respondent. In
the instant case there is no evidence that Respondent ad-
vised the employees of the purpose of the questioning. And
further, notwithstanding the self-serving comments in the
statement above, there is no evidence that the employer
assured the employees that no reprisals would take place.
Accordingly, and since it is evident that Respondent inter-
rogated the employees without observing all of the safe-
guards established by the Board and the courts,' I find that
by such conduct Respondent violated Section 8(a)( 1) of the
Act.''
] 146 NLRB 770. 775 (1964), enforcement denied on other grounds 344
F.2d 617 (8th Cir. 1965).
14 Tamper. Inc. 207 NLRB 907 (1973), entd. 522 F.2d 781 (4th Cir 1975);
N.L.RB. v. Neul;off Brothers Packer.s, Inc., 375 F.2d 372 (Sth Cir. 1967);
Auromoive Warehouse Distributors,r. Inc., 171 NL RB 683 (1968).
IS Indeed. the reasons for finding the violation in this case are all the more
compelling in view of the fact that a complaint had not et issued at the time
of the foreman's interrogation This conduct therefore did not ccur at a time
"where investigation is necessary in preparing the emploser's defense for
trial of his case." Johnne's Poulr- Co(., supra In addition, I should note that
I do not rels on any evidence concerning Salinas' solicitation procured bh
Respondent after her discharge In reaching my Decision.
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectu-
ate the policies of the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The unforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent did not violate Section 8(a)( ) and (3) of
the Act by its discharge of Marlene Salinas on October 6,
1977.
[Recommended Order omitted from publication.]
992