Sylvania Electric Products, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1969

174 N.L.R.B. 1067 (N.L.R.B. 1969)

SYLVANIA ELECTRIC PRODUCTS 1067
Sylvania Electric Products , Inc. and International
Union Of Electrical , Radio and Machine
Workers , AFL-CIO-CLC
Servomation Of West Tennessee Co., Inc., a
subsidiary of Servomation Of Central Tennessee,
Inc. and International Union Of Electrical , Radio
and Machine Workers , AFL-CIO-CLC. Cases
26-CA-3019, 26-CA-3019-2, and 26-CA-3020
M arch 10, 1969
DECISION AND ORD' R
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On August 23, 1968, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that Respondent Sylvania had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent Sylvania and
Respondent Servomation had not engaged in certain
other alleged unfair labor practices Thereafter,
Respondent Sylvania, the General Counsel, and the
Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs, and
Respondent Sylvania and the Charging Party filed
reply briefs.
Pursant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and lands that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examinei.
ORDER
Pursant 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, Sylvania Electric
Products, Inc, Dyersburg, Tennessee, its officers,
agents, successors, and assigns, shall take the action
'These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner to which the Charging Party has
excepted After a careful review of the record , we conclude that the Trial
Examiner's credibility findings are not contrary to the clear preponderance
of all the relevant evidence Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 199
F 2d 362 (C A 3)
set forth in the Trial Examiner's Recommended
Order
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
are hereby dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner Pursant to an
order of the Regional Director for Region 26, dated April
19, 1968, the above two proceedings were consolidated
The complaint, dated April 19, 1968, against Sylvania
Electric Products, Inc, herein called Sylvania, in Cases
26-CA-3019 and 26-CA-3019-2, alleging that said
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(I) and Section 2(6)
and (7) of the National Labor Relations Act, as amended,
is based upon charges filed on March I and 25, 1968, by
International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, herein called the Union In
substance, the complaint alleges that (1) On February 12,
1968, Sylvania's plant manager, Eugene W. Desaulniers,
demanded that Servomation of West Tennessee Co., Inc.,
remove its employee Jerry Wayne Pride, from the
Sylvania plant because of the latter's union activities,
thereby causing Servomation of West Tennessee Co., inc ,
to discharge Pride, and (2) Sylvania by its supervisor of
personnel, 0 T Cummins, about March 1, 1968, refused
to allow Sylvania's employees access to nonworking areas
of the plant for the purpose of distributing union
literature Sylvania's answer generally denies that it has
engaged in the alleged unfair labor practices
Upon a charge and an amended charge filed by the
Union on March 1, and April 18, 1968, respectively, a
complaint in Case 26-CA-3020, dated April 19, 1968, was
issued alleging that Servomation of West Tennessee Co.,
Inc., herein called Servomation, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act. Said complaint was superseded by an amended
complaint dated May 3, 1968 The amended complaint
against Servomation, as further amended at the hearing,
in substance, alleges that: (1) on September 1, 1967,
Servomation promulgated, and since said date has
enforced, a rule or policy that its employees when at
customers' premises will observe strict neutrality with
respect to union activities of its customers' employees and
(2) Servomation on February 12, 1968, discharged Jerry
Wayne Pride because he assisted the Union or engaged in
other activities protected by the Act. Servomation's
answer admits that the rule or policy referred to in the
amended complaint has been in effect but alleges that
such rule or policy has been in effect since June 27, 1963
Servomation's answer also admits that it discharged Pride
but alleges that it discharged Pride because he had
violated said rule or policy Servomation denies that the
conduct complained of constituted any violation of the
Act.
A hearing in these proceedings was held in Dyersburg,
Tennessee, on June 3 and 4, 1968 Thereafter, briefs were
filed on behalf of all parties which have been carefully
considered.
On the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following
174 NLRB No. 159
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I The Business of the Respondents
Sylvania, a Delaware corporation, manufactures photo
lamps at its plant in Dyersburg, Tennessee, which is the
only facility of Sylvania involved in these proceeding,
During the past 12 months, Sylvania, in the course and
conduct of its business, purchased and received at its
Dyersberg plant products and materials valued in excess
of $50,000 directly from points outside the State of
Tennessee and, during the same period, Sylvania
manufactured, sold, and shipped from said plant products
valued in excess of $50,000 directly to points outside the
State of Tennessee Sylvania admits, and I find, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
Servomation of West Tennessee Co , Inc., a Tennessee
corporation, maintains an office and warehouse at 228
West King Street, Nashville, Tennessee Said corporation
is a wholly owned subsidiary of Servomation of Central
Tennessee, Inc , a Tennessee corporation, which has its
principal office at 535 Fifth Avenue South, Nashville,
Tennessee During the 12 months ending April 30, 1968,
the sales of Servomation were $244,000 and its purchases
of supplies, merchandise, and equipment from points
outside the State of Tennessee were $46,500 During the
same period, the sales of Servomation of Central
Tennessee, Inc., were $2,100,000 and its purchases of
merchandise, supplies, and equipment from points outside
the State of Tennessee were $555,000. The two
corporations have common officers and directors.
Servomation admits, and I find, that Servomation of West
Tennessee Co., Inc , and Servomation of Central
Tennessee, Inc , together constitute a single employer
within the meaning of the Act and are engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Factual Background
The conduct complained of in these proceedings relates
to the Union's campaign to organize the employees at
Sylvania's Dyersburg plant On January 6, 1968, an initial
contact was made between representatives of the Union
and three Sylvania employees and early the next month
the Union held its first general meeting of employees.
Except for an incident, which will be discussed below, that
occurred on the night of February 29 - March 1, 1968,
there is no evidence in the record of any unlawful
opposition by Sylvania to the organizational activities
among its employees
Servomation's involvement in the situation arises from
its contract with Sylvania, entered into on September 23,
1966, pursuant to which Servomation operates and
maintains vending machines for the sale of food products,
beverages, and tobacco in the Sylvania plant. Servomation
is an independent contractor and its employees in the
performance of their duties are not subject to the control
of Sylvania To service its equipment in Sylvania's plant
Servomation employs a man or woman on each of three
daily shifts to work full time at said premises These
employees have no specific times for breaks but are
permitted to rest and to eat their meals whenever their
work permits Servomation has a policy of longstanding
that its employees who perform services at the premises of
its customers are not to involve themselves in any union
organizing campaign that may be taking place among the
customers' employees and are to remain completely
neutral in such circumstances'
Jerry Wayne Pride was discharged by Servomation for
violation of its neutrality rule Pride was hired in
November 1967 by Servomation and was assigned to work
in the Sylvania plant on the afternoon shift from 3 p m
to t 1 p m. He was working there when the Union began
its effort to organize the employees of Sylvania There is
no evidence that Pride was formally advised about the
existence of Servomation's neutrality rule prior to
February 6, 1968 2 However, on the night of February 6,
Pride was specifically instructed by Ralph S. Boyd, a
branch manager of Servomation, to remain completely
neutral in regard to the union organizational campaign
that was in progress among Sylvania's employees'
The event which was directly responsible for Pride's
discharge occurred on February 12, 1968 About 6.30 p m.
William E Hardison, a production supervisor for
Sylvania, came into the lunchroom which then was empty
of other Sylvania employees Pride joined Hardison and
they began a conversation During their conversation
Pride tried to convince Hardison that even though he was
a supervisor he also needed a union ° Upon leaving the
lunchroom Hardison reported the incident to Sylvania
management personnel who promptly notified Plant
Manager Eugene W Desaulniers. The latter telephoned
Fred Harris. Sylvania's supervisor of purchasing, and
asked him to tell Servomation to send a representative to
Sylvania's plant as soon as possible Following their
conversation, which took place about 7 p m., Desaulniers
and Harris left their homes and drove to the plant
together.
'Wayne Hollis , operations manager for Servomation , and Ralph S
Boyd , branch manager of Servomation , testified that the rule , although of
longstanding, has never been reduced to writing but has been promulgated
by oral repetition
Paul M Gibbs, a Servomation employee and the supervisor in charge of
the vending equipment at Sylvania's plant , credibly testified that soon after
the Union began its organizing campaign at Sylvania he told Pride "not to
take any part in the union [ activity at the Sylvania plant] one way or the
other It didn't mean anything to us "
'Pride testified that Boyd "said , `Jerry, you shouldn ' t take sides with the
union or go either way with it ' Nothing was said about a policy" Boyd
testified that he said, "Jerry , whatever you do, don't take any part, don't
take sides, don't talk to any of the people Just be completely neutral
because this is what we have to do and this is our company policy " The
only substantial difference between the testimony of Pride and Boyd is
that , according to Pride , Boyd did not mention that the instruction not to
take sides was an explication of established company policy However, in
regard to this matter Boyd was corroborated by Hollis On the other hand,
Gibbs, who also was present at the time , testified that Boyd , merely told
Pride "we had to be completely neutral on the union situation " Gibbs did
not testify that Boyd informed Pride that this instruction reflected
established company policy Upon consideration of all the testimony
concerning the conversation in question I credit Boyd ' s version as being the
most accurate
11 find that Hardison ' s version of the conversation is more reliable than
Pride ' s version According to Pride , it was Hardison who started the
conversation about the Union by asking Pride what he thought about the
subject Pride responded , " I didn't belong to it and wasn't authorized to
say, and that I did belong to the Carpenter Union and it one went in there
I felt like it would help them " Thus, even under Pride ' s version, there was
conversation about the Union and he expressed himself as favoring the
SYLVANIA ELECTRIC PRODUCTS 1069
Harris, in accordance with Desaulnters' instructions,
had telephoned Wayne Hollis, Servomation's operations
manager Harris told Hollis "to come to the [Sylvania]
plant because the plant manager was ready to throw Pride
oft the premises for passing out union literature " Hollis
called Servomation Branch Manager Ralph S. Boyd and
told him what had happened and that Desaulnters wanted
Pride out of the Sylvania plant Boyd instructed Hollis to
go to the Sylvania plant, to relieve Pride of his duties and
to make an investigation
Hollis met Desaulnters and Harris in the former's office
at the plant Hollis apologized for what had happened and
said he hoped it had not caused any damage Desaulniers
said he was afraid some damage had been done and that
he wanted Servomation to remove Pride from the
premises until the matter was resolved When Desaulnters
asked Hollis what he was going to do, Hollis replied that
he would let Pride go until further notice Hollis also
explained Servomation's neutrality policy to Desaulnters
and stated that if the facts were as represented Pride had
violated that policy.
After leaving Desaulniers' office Hollis spoke with
Pride about the matter Pride denied that he had been
soliciting or passing out literature for the Union While
the two were talking they were joined by Desaulnters,
Harris, and Gibbs At the suggestion of Gibbs, Hardison
was called in order that there might be a direct
confrontation between Hardison and Pride Hardison in
the presence of the others (except Desaulnters who left the
group) identified Pride as the man who had spoken to him
about the Union
Pride was discharged as of February 12, 1968
In connection with the discharge of Pride General
Counsel contends that Servomation's neutrality rule is
unlawful, that Servomation has violated the Act by
discharging Pride for breach of the neutrality rule, and
that Sylvania has violated the Act by requesting Pride's
removal from its premises because Pride had been talking
to Hardison about the Union
The complaint against Sylvania, in additon to the
allegation relating to Pride, also alleges that Sylvania has
maintained in effect an unlawful no-distribution rule. On
the night of February 29 - March 1, 1968, the Union
was engaged in distributing literature at Sylvania's gate.
The union representatives were advised by. Personnel
Manager Cummins that they could not enter upon
company property. A short time later a policeman arrived
and told the union representatives that a complaint had
been received that they were trespassing on company
property The union representatives did not thereafter
attempt to go onto Sylvania property However, after the
third-shift employees had entered the plant and while the
second-shift employees were leaving, Robert A. Singleton,
a second-shift employee, obtained some of the union
literature, went onto the driveway within the Company's
gate, and began passing out the literature to persons in
automobiles who were driving out of the plant. Cummins
went to Singleton and ordered him off company property
saying, "You can't do that on Company property"
According to the testimony of Cummins, Singleton was
interfering with the movement of the traffic. slowing the
traffic down, and, by pushing the flyers into the windows
of the cars, interfering with the operators' control of their
automobiles thus creating a danger of collision and also
placing himself in danger
Union even though he "wasn't authorized to say "
Cummins testified that at the time of the incident
Sylvania had in effect a no-distribution rule which forbade
off-duty employees who had left the plant premises from
returning to the Company's property to distribute
literature According to Cummins' further testimony, this
rule was not in writing Cummins explained that rules
regulating entry into the plant were adopted when the
plant was opened in 1966 in order to protect the property
and the employees, particularly female employees, against
intruders, to prevent litter, and also in order to protect
Sylvania's trade secrets because a new and novel product
was being manufactured in the plant
The no-distribution rule was modified a few days after
the incident in question upon the advice of Sylvania's
counsel. The modification of the rule has not been
generally published to the employees
B. Servomation 's Neutrality Rule
The amended complaint alleges and Servomation's
answer admits that during the times material hereto
Servomation has maintained and enforced "a rule or
policy that its employees will observe strict neutrality in
any union activities of employees of [Servomation's]
customers at any of its customers' places of business "
The answer further "avers that in successfully carrying on
its business operations, it is necessary to have and
maintain the good will of both the management and the
employees of its customers, the plants of some of which
are organized and others of which are not, that
[Servomation] has the right to require its employees to
remain neutral during their working hours on the premises
of its customers, to insist that they do not take part one
way or the other in the union activities in which the
employees of its customers may be involved
Despite the fact that Servomation's answer specifically
asserts that its neutrality rule is based upon business
necessity and is lawful, the statement of issues in these
proceedings set forth in General Counsel's brief does not
include any question concerning the validity or invalidity
of the neutrality rule The only argument with respect to
the rule contained in General Counsel's brief is the
following "Servomation's so-called 'neutrality rule' is so
broad as to restrict its employees from engaging in any
union activities involving the employees of its customers at
any time Such a rule is unlawful on its face." This
statement of the rule is a distortion of the record and of
the pertinent allegation in the ammended complaint. The
complaint alleges only that the rule is applicable "at any
of [Servomation's] customers' place of business "
Contrary to General Counsel the neutrality rule is not "so
broad as to restrict [Servomation's] employees from
engaging in any union activities involving the employees of
its customers at any time " The rule is limited in its
application to customers' places of business. Upon the
facts in the present proceedings, this can only occur while
Servomation's employees are at work in such places
Apart from exaggerating the scope of the neutrality rule,
General Counsel completely ignores Servomation's defense
that that rule is justified by the business necessity of
maintaining the good will of both the management and
the employees at the plants where it operates its vending
machines
Servomation's positon, as reflected in its answer to the
amended complaint and as amplified in its brief is, as
follows The neutrality rule is analogous to a
no-solicitation rule and the same principles used by the
Board to determine the lawfulness of no-solicitation rules
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be applied to this case The neutrality rule rests
upon the foundation of good business judgment, namely,
to remove its employees "from involvement in the
emotion-charged atmosphere of labor-management
controversy, and thereby to preserve customer
satisfaction " Servomation contends that the entire time
its employees are on the premises of its customers is
worktime and therefore its neutrality rule, which prohibits
its employees from involving themselves in union activities
at customers' premises, is in effect a rule which prohibits
solicitation on worktime Referring to Peyton Packing
Company, Inc , 49 NLRB 828, 843, where the Board held
that "[w]orking time is for work," it argues that its
neutrality rule is valid under long-established principles
Moreover, Servomation argues, even if some of the time
that its employees are on customers' premises should be
deemed as nonworking time, the rule is still valid because
during any such nonworking time (as when eating or
resting) the employees must remain in the lunchroom
where the vending machines are located As Servomation's
products are sold and consumed in this area, under the
special rules pertaining to retail businesses, Servomation
was lawfully justified in prohibiting union activities by its
employees in such areas even during their nonworking
time S
I agree with Servomation that its neutrality rule is a
"no-solicitation" rule as the term is used by the Board
The category of activity which the Board refers to as
"solicitation" is not limited merely to conduct which seeks
to enlarge the membership of a union but embraces
almost all direct person-to-person support of a labor
organization Accordingly, Servomation's neutrality rule
which prohibits its employees from participating in
organizational activities taking place in customers'
premises is a "no-solicitation rule" as the term is used in
Board cases The issue regarding the lawfulness of
Servomation's neutrality rule appears to be novel The
parties have not referred me to any case in which the
Board has passed upon the validity of a rule such as this
which purports to govern employees' conduct while away
from their employer's premises and while at the premises
of their employer's customers' Referring to no-solicitation
rules, the Board in Stoddard-Quirk Manufacturing Co ,
138 NLRB 615, observed that "differing fact situations
call for differing accomodations The Supreme Court in
the most recent of its utterances in this field pointedly
reminded us in a closely related context that `mechanical
answers' will not avail `for the solution of this
non-mechanical complex problem in labor management
relations ' N L R B v. United Steelworkers of America,
CIO (Nutone, inc ), supra, at 364 "
In Stoddard-Quirk, the Board restated some of the
principles applicable to no-solicitation rules It pointed out
'See Goldblatt Bros , Inc. 77 NLRB 1262, Marshall Field & Company.
98 NLRB 88, 94
'Cf Armstrong Tire & Rubber Company , Test Fleet Branch, 1 19
NLRB 382, enfd 262 F 2d 812 (C A 5), where the Board applied the
principles it deems controlling in cases involving union solicitation within
an employer ' s plant to a case involving truckdrivers who engaged in union
solicitation during scheduled rest stops on the road However, unlike the
instant case , the drivers in the Armstrong case were using their employer's
vehicles and were not engaging in the conduct complained of at the
premises of their employer ' s customers Pioneer Natural Gas Company,
158 NLRB 1067, 1072-75, is likewise inapposite The respondent in the
Pioneer case attempted to restrict activities of its employees directed at the
organization of employees of its customers during times when its
employees were not at work, were not being paid and were not at the
customers ' premises 'in connection with any duty or function being
discharged for the respondent
that [138 NLRB at 617, 621]
Almost from the outset the Board has held with court
approval that an employer may in the normal situation
make and enforce a rule forbidding his employees to
engage in such union solicitation during working time
("working time is for work "), but that a broad rule
banning such activity during nonworking time is
presumptively invalid Peyton Packing Company, inc.,
49 NLRB 828, 843 - 844, cited with approval in
Republic Aviation Corporation v NLRB, supra, at
8
[W]e believe that to effectuate organizational rights
through the medium of oral solicitation, the right of
employees to solicit on plant premises must be afforded
subject only to the restriction that it be nonworking
time
However, the Board specifically limited its decision "to
union solicitation when these activities occur on
property subject to the employer's ownership and
dominion " Thus the Stoddard-Quirk case does not
necessarily determine the result in the instant case
The validity of employer rules restricting union
solicitation depends upon "an adjustment between the
undisputed right of self-organization assured to employees
under the Act and the equally undisputed right of
employers to maintain discipline in their establishments "
Republic Aviation Corporation v N L R B, 324 U S.
793, 797-798. Neither right is unlimited "Opportunity to
organize and proper discipline are essential elements in a
balanced society " Ibid The "ultimate problem is the
balancing of the conflicting legitimate interests " "[11t is
only when the interference with Section 7 rights outweighs
the business justification for the employer's action that
Section 8(a) (1) is violated."' For an example, although
the Board normally presumes that a no-solicitation rule
which prohibits union solicitation on company property by
employees during their nonworking time is an
unreasonable impediment to self-organization and is
therefore presumptively invalid.' the Board, nevertheless,
sanctions rules by retail department stores which impose a
total prohibition on union organizational activities, even
on nonworking time, in those areas of the store open to
the public 10 The rationale for the different approach in
the case of department stores is that union activities in the
public area of the store "might conceivably be disruptive
of the respondent's business '"' stated otherwise, the
Board, in balancing the right granted by the Act to
employees to engage in organizational activities against
the potential adverse effect such activities, if conducted in
the public areas of the store, might have on their
employer's business, concluded that the scales weighed
more heavily in the employer's favor and therefore a rule
prohibiting union activities in the public areas of a
department store, even on nonworking time, is
presumptively valid
'N L R B v Erie Resistor Corp, 373 U S 221, 236
'Textile Workers Union of America v Darlington Manufacturing Co,
380 U S 263, 269
'Walton Manufacturing Company, 126 NLRB 697
10E g, May Department Stores Company, 59 NLRB 976, enfd 154 F 2d
533 (C A 8), cert denied 329 US 725 , Bonwit Teller, Inc, 96 NLRB
608, remanded 197 F 2d 640 (C A 2), cert denied 345 U S 905. Goldblatt
Bros , Inc, 77 NLRB 1262
May Department Stores Company, 59 NLRB 976, 981
SYLVANIA ELECTRIC PRODUCTS 1071
A rule purporting to regulate employees' conduct
cannot be evaluated in isolation Where the rule applies
and in what circumstances it applies is critical in
evaluating its lawfulness "[T]he determination as to
whether an employer's antiunion activities are an unfair
labor practice depends on the context in which those
activities occur, and no-solicitation rules are to be
subjected to the same kind of scrutiny "" In this case, the
only application of Servomation's neutrality rule as to
which any evidence was adduced at the hearing was with
respect to those employees of Servomatton who work in
the Sylvania plant Accordingly, in reaching my decision
regarding the validity of Servomation's neutrality rule I
limit myself to its application to those of its employees
who work in the Sylvania plant It might well be that my
conclusions would not be the same if evidence were
adduced concerning its application to other employees of
Servomation However, my decision here must be
circumscribed by the record before me
So far as the neutrality rule applies to Servomation
employees at the Sylvania plant the record shows that
these employees have no fixed lunch periods or rest
periods Except for times when the employee on duty may
be alone in the storeroom or may be in the restroom he is
in the lunchroom or occasionally in the lobby of the
Sylvania plant where Servomation's vending machines are
located As only one Servomation employee is at work on
any shift," there normally is no occasion for him while on
Sylvania's premises to engage in any discussion relating to
the organization of employees in any unit in which he
appropriately might be included Thus, as was
demonstrated in the case of Pride, the only occasion for a
Servomatton employee to become involved in
organizational discussions while in the Sylvania plant is in
connection with activities of the employees of Sylvania.
This Servomation's neutrality rule forbids.' I The
purported reason for the rule, according to Servomation,
is to avoid antagonizing the managements of its customers
who permit it to vend its products at their premises and
the employees of such customers who are the direct
customers of Servomatton because they buy the products
Servomation offers for sale. Servomatton believes that it
must maintain the good will of both the management and
the employees of its customers in order to preserve its
business
"Employer rules prohibiting organizational solicitation
are not in and of themselves violative of the Act.'' " 15 In
this case, the restriction placed by Servomatton 'upon the
opportunities for its employees to engage in organizational
activities is minimal The neutrality rule applies only to
the participation of Servomation's employees in union
campaigns affecting employees of other employers and
only while at such other employers' premises The benefits
which Servomation's employees might obtain from such
involvement would seem to be remote and indirect. On the
other hand, there exists the real possibility that the
involvement of Servomation's employees in orgaizational
activities taking place at the premises of its customers
might antagonize its customers and thereby jeopardize its
business relations to the detriment not only of
"Chief Justice Warren dissenting in N L R B v United Steelworkers of
America , CIO, 357 U S 357, 368
"The evidence suggests that from time to time , as in cases when vending
machines require repair , etc, the Servomation employee on duty at the
Sylvania plant may be assisted by other Servomation employees
"Significantly , Servomation ' s neutrality rule does not forbid its
employees to talk with one another about union matters even at customers'
premises
Servomation but also to the possible detriment of its
employees That this might happen is evidenced by what
actually occurred in this very case
While the neutrality rule serves as a limitation upon
Servomation's employees' statutory rights, not every
impingement upon the rights granted employees by the
Act constitutes an unfair labor practice 16 Many
situations present a complex of conflicting considerations
which require the Board to strike a balance between
legitimate competing interests what will best effectuate
national labor policy In such cases the Board's "special
function [is to apply] the general provisions of the Act to
the complexities of industrial life and of '[appraising]
carefully the interests of both sides of any
labor-management controversy in the diverse
circumstances of particular cases' from its special
understanding of 'the actualities of industrial relations' ""
It is my opinion that the business justification for
Servomation's neutrality rule overbalances its interference
with the exercise by Servomation's employees of their
statutory rights and is therefore valid
As it is undisputed that Pride was discharged by
Servomation for disregarding the Company's neutrality
rule, which I find valid, I further find that his discharge
by Servomation does not violate the Act. The complaint
alleges that Sylvania violated Section 8(a)( I) of the Act by
its conduct in relation to Pride The issues raised thereby
present interesting academic questions. However, it would
be anomalous to find that Sylvania violated the Act while
at the same time deciding that Servomation who was
Pride's employer and who discharged Pride did not violate
the Act. To reach such incongrous result would not
effectuate the Act. I shall, therefore, recommend dismissal
of the complaint insofar as it alleges that Sylvania
violated Section 8(a)(1) of the Act by reason of conduct
on its part looking to the removal of Pride from its
premises or to the discharge of Pride 18
C Sylvania's No-Distribution Rule
From the time Sylvania opened its plant in Dyersburg,
Tennessee, at least until March 1968 it maintained in
effect a rule which prohibited employees who left its plant
from reentering its premises to distribute union literature
in its parking lot and in similar places Such rule
constitutes an unlawful infringement of employees'
statutory rights. Republic Aluminum Company v.
"N L R B v United Steelworkers of America, CIO, supra, 361
"Ursula Cervantes , et at d/b/a Panaderia Sucesion Alonso , 87 NLRB
877, 881-882 See also General Electric Company, 161 NLRB 615, Central
States Petroleum Union , Local 115 (Standard Oil Company), 127 NLRB
223, affd sub nom, Local 483, Boilermakers v N L R B, 288 F 2d 166,
cert denied 368 U S 832, N L R B v Whiting Milk Corp, 342 F 2d 8
(CA I)
"N L R B v Erie Resistor Corp , 373 U S 221, 236
" i am not convinced by the arguments of General Counsel and the
Charging Party regarding the alleged violation of Section 8(a)(1) on the
part of Sylvania As a theoretical question I do not believe that Sylvania's
conduct violated the Act However , in view of my finding that it would be
impractical to find a violation on the part of Sylvania while at the same
time exonerating Servomation , it would unnecessarily encumber this
Decision for me to catalogue my objections to the arguments advanced by
General Counsel and the Charging Party and to advance my reasons for
believing the opposite Ref-Chem Company, 153 NLRB 488, cited by
General Counsel and Charging Party, is inapposite because, among other
reasons the company (Rexall Chemical Company) which requested the
discharge of its vendor' s employees was not a respondent in the case and
the case did not concern the validity of a no-solicitation rule promulgated
and enforced by the vendor
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N L.R B. 394 F 2d (C A 5) Sylvania contends that in
March 1968 the rule was rescinded However, Sylvania
has not published any notice to its employees of such
rescission Therefore, the purported rescission cannot be
deemed to have removed the effects of its unlawfully
restrictive no- distribution rule I also find without merit
the further arguments put forward by Sylvania in its
defense. Accordingly, I find that the General Counsel has
proved by a preponderance of the evidence that Sylvania
has violated the Act by the application and enforcement
of the no-distribution rule here in question
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following
CONCLUSIONS OF LAW
where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material
(b) Notify said Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 21
IT IS ALSO RECOMMENDED that the complaints herein be
dismissed insofar as they allege that Servomation of West
Tennessee Co , Inc , a subsidiary of Servomation of
Central Tennessee, Inc , has engaged in any unfair labor
practices and insofar as they allege that Sylvania Electric
Products, Inc has engaged in any unfair labor practices
other than the conduct herein above specifically found to
have constituted a violation of Section 8(a)(1) of the Act
1. By applying and enforcing at its Dyersburg,
Tennessee, plant, a rule which prohibits employees from
returning to the plant to distribute union literature in
nonworking areas, during their nonworking time, Sylvania
Electric Products, Inc , has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
3 Respondents Sylvania Electric Products, Inc , and
Servomation of West Tennessee Co., Inc , a subsidiary of
Servomation of Central Tennessee, Inc , have not engaged
in any violations of the Act by reason of conduct alleged
in the complaints herein to have constituted unfair labor
practices except insofar as such conduct herein above has
been found to violate Section 8(a)(1) of the Act
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby recommend that
Sylvania Electric Products, Inc , its officers, agents,
successors, and assigns, shall-
1 Cease and desist from.
(a) Applying and enforcing any plant rule which
prohibits its employees from entering its premises to
distribute union literature in nonworking areas of its
Dyersburg, Tennessee, plant during their nonworking
time
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its plant in Dyersburg, Tennessee, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by its representative,
shall be posted by the Company, immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"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 "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that.
WE WILL NOT apply or enforce any plant rule which
prohibits employees from entering upon the premises of
our Dyersburg, Tennessee, plant during their
nonworking time to distribute union literature in
nonworking areas of the plant
WE WILL NOT in like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed by Section 7 of the Act
SYLVANIA ELECTRIC
PRODUCTS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 746 Federal
Office Building, 167 North Main Street , Memphis,
Tennessee 38103, Telephone 534-3161