The Brearley Co.

National Labor Relations Board - Board Decisions

Mar 28, 1967

163 N.L.R.B. 637 (N.L.R.B. 1967)

THE BREARLEY COMPANY 637
bargaining or other mutual aid or protection, or to refrain
from engaging in any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with the Union, as the exclusive representative of the
employees in the bargaining unit described above, and
embody any understanding reached in a signed
agreement.
(b) Post in the Respondent's plant at Stuttgart,
Arkansas, copies of the attached notice marked
"Appendix."4M Immediately upon receipt of the copies of
said notice, to be furnished by the Regional Director for
Region 26 (Memphis, Tennessee), the Respondent shall
cause the copies to be signed by one of its authorized
representatives , to be posted, and to be maintained for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
therewith .411
as 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."
1" 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 recognize and, upon request , bargain with
International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America,
AFL-CIO (the Union), as the exclusive representative
of our employees in the bargaining unit described
below, and embody any understanding reached in a
signed agreement.
The bargaining unit is:
All production and maintenance employees at
the Stuttgart, Arkansas, plant of Arkansas Grain
Corporation, excluding all laboratory employees,
office clerical employees, professional
employees, watchmen, guards, and supervisors
as defined in the Act.
WE WILL NOT interrogate our employees as to their
union interest , activities, membership, or leadership
in a manner violative of Section 8(a)(1) of the Act.
WE WILL NOT engage in surveillance of our
employees in their union activities or create the
impression of such surveillance.
WE WILL NOT threaten our employees with
discharge, layoff, reduction in hours of work, or other
reprisal, or threaten not to recognize or negotiate with
the Union, if our employees designate the Union as
their collective-bargaining representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, or to form, join, or
assist the Union or any other labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from engaging in any or all of
such activities.
All of our employees are free to become or remain, or
refrain from becoming or remaining , members of any labor
organization.
ARKANSAS GRAIN
CORPORATION
(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.
The Brearley Company and Warehouse and
Mail Order Employees Union, Local
No. 734, Affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.
Cases 38-CA-151, 38-CA-163, and 38-RC-191.
March 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On September 20, 1966, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, 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 the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
He further recommended that the representation
election held on March 4, 1966, in Case 38-RC-191,
be set aside and a new election held. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
163 NLRB No. 84
638 DECISIONS OF NATIONAL
Decision and a supporting brief and the General
Counsel filed cross-exceptions and a supporting
brief. The General Counsel also filed a motion
requesting the Board to order the Respondent to
rescind its letter of September 22, 1966, alleged to
be in derogation of the Board 's processes.
Subsequently , Respondent filed a brief in answer to
the General Counsel 's cross-exceptions , and a reply
to the General Counsel 's motion.'
Pursuant 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 finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision , the exceptions , cross-
exceptions, and briefs , and the entire record in the
case, and hereby adopts the findings , conclusions,'
and recommendations of the Trial Examiner, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified, and hereby orders that the Respondent,
The Brearley Company, Rockford, Illinois, its
officers, agents, successors, and assigns, shall take
the following action:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its
employees in the exercise of their right to engage in
union or concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, through unlawful interrogation,
surveillance, and the unlawful promulgation and
enforcement of rules.
(b) Posting at its plant or distributing to its
employees any written matter which tends to
undermine the effectiveness of the Board's process.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Rescind its no-solicitation rule promulgated
October 1, 1965.
(b) Distribute a letter to its employees which
rescinds the letter distributed to its employees on
September 22, 1966.
(c) Post at its Rockford, Illinois, plant, copies of
the attached notice marked "Appendix."4 Copies of
said notice, to be furnished by the Officer-In-Charge
for Subregion 38, after being duly signed by the
Respondent's representative, shall be posted by the
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 the
LABOR RELATIONS BOARD
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Officer-In-Charge for Subregion 38,
in writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the election held in
Case 38-RC-191 is set aside and the Regional
Director for Region 13 is directed to hold a second -
election at an appropriate time.
With respect to the General Counsel's motion, the evidence
presented by him, and admitted by the Respondent, shows that on
September 22, 1966, Respondent distributed to its employees a
letter wherein it informed its employees of the Trial Examiner's
adverse decision, and, at the same time, stated that it would have
no difficulty in complying with the recommended notice since it
had not engaged in the conduct prohibited thereby The General
Counsel contends that this letter is in derogation of the Board's
process In view of our Decision herein adopting the findings,
conclusions, and recommendations of the Trial Examiner, we
agree that Respondent's letter, if allowed to continue in existence
unchallenged, would seriously undermine the effectiveness of the
Board's process In these circumstances, we shall include, in our
Order, provisions designed to neutralize the impact of the
statements made to employees in the aforementioned letter
Compare, Bangor Plastics, Inc, 156 NLRB 1165 (1966)
L The Trial Examiner found that the Respondent delayed the
grant of certain benefits until strategic points in the Union's
organizing campaign so as to deter effectively the concerted
activities of its employees, in violation of Sec 8(a)(1) However, he
also found that the decision to grant these benefits was based
upon lawful economic considerations Respondent contends, and
we agree, that the record does not support a finding that the
timing of the grants was deliberately designed to interfere with
the organizing campaign Here the decision to grant the benefits
was made in August 1965, after discussions, surveys, and
analyses which began in March 1965, and the benefits were
granted in October, November, and March To find all the
subsequent grants unlawful, we would have to hold, which we are
unwilling to do, that having decided to grant the benefits before
organizing began, Respondent was precluded from granting the
benefits until an election was held and the Union's objections to
the election, if any, were resolved. Under these circumstances, we
find that the Trial Examiner's findings are untenable, and
accordingly, we shall dismiss this aspect of the complaint.
We find merit in the General Counsel's exception to the Trial
Examiner's failure to provide for recission of the no-solicitation
rule Accordingly, we shall order that Respondent rescind its no-
solicitation rule.
In the event that this Order is enforced by a decree of a
United States Court of Appeals, the words "a Decision and
Order" shall be substituted for the words "a Decree of the United
States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of their
right to engage in union or concerted activities
for the purpose of collective bargaining or other
mutual aid or protection.
THE BREARLEY COMPANY 639
WE WILL NOT coercively interrogate our
employees about their union activities.
WE WILL NOT conduct surveillance of union
or concerted activities of our employees.
WE WILL NOT unlawfully promulgate,
maintain , and enforce no-solicitation rules.
WE WILL NOT interfere with the right of our
employees to make a free choice in any election
ordered by the National Labor Relations Board.
WE WILL NOT post at our plant or distribute to
our employees any written matter which tends
to undermine the effectiveness of the Board's
process.
WE WILL rescind our no-solicitation rule
promulgated October 1, 1965.
WE WILL distribute a letter to our employees
which rescinds the letter distributed to our
employees on September 22,1966.
Dated By
THE BREARLEY COMPANY
(Employer)
(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, Fourth Floor, Citizens Building, 225 Main
Street, Peoria, Illinois 61602, Telephone 673-9061.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner : Upon a charge filed
October 13 , 1965, in Case 38-CA-151 by Warehouse and
Mail Order Employees Union, Local No. 743, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , hereinafter
referred to as the Union , the Board 's General Counsel
issued a complaint against The Brearley Company,
hereinafter referred to as the Respondent , alleging that the
Respondent committed unfair labor practices in violation
of Section 8(a)(1) of the National Labor Relations Act, as
amended (the Act). Upon additional charges filed by the
Union on December 8, 1965 , as later amended , in Case
38-CA-163, the Board 's General Counsel issued an
additional complaint against Respondent, alleging
violations of Section 8(a)(1) of the Act. Respondent by
answer denied the commission of any alleged unfair labor
practices.
At an election conducted on March 4, 1966 , 58 votes
were cast for the Union, 90 against the Union , and 2 were
challenged . The Union filed timely objections to that
election based on the Respondent ' s alleged illegal
conduct , which , it was claimed , affected the results of that
election . On May 4, 1966, following an investigation of the
issues raised by the aforementioned objections, the
Regional Director for Region 13 issued his report on
objections overruling all but one of the objections, but
directing that a hearing to resolve the remaining alleged
objection and an additional allegation be held before a
Trial Examiner . Because the issues to be heard in Case
38-RC-191 are related to the issues posed by the
complaints in Cases 38-CA-151 and 38-CA-163, the
Officer-in-Charge of Subregion 38 on June 3, 1966,
ordered that all three of said proceedings be consolidated
for hearing.
The consolidated proceeding was held , pursuant to due
notice, before me at Rockford , Illinois, on June 14 and 15,
1966 . All parties to the proceeding appeared and were
given full opportunity to offer relevant and competent
evidence . Subsequent to hearing motions were made by
the Respondent and the General Counsel to correct errors
in the official transcript . In the absence of objections
thereto the motions are hereby granted . Briefs were
received from the General Counsel and Respondent, both
of which have been carefully considered.
Upon the entire record in this consolidated proceeding,
and my observation of the demeanor of the witnesses as
they testified , I make the following:
FINDINGS OF FACT
I. PERTINENT COMMERCE FACTS
The Respondent, The Brearley Company , is and has
been at all times material herein, an Illinois corporation
with its principal office and place of business located at
Rockford, Illinois, where it is engaged in the manufacture
and sale of bathroom scales, baby scales, hampers,
bathroom hardware , and related products. The
Respondent during the past calendar year , which period is
representative of all times material herein , sold and
shipped finished products valued in excess of $50,000
directly to customers located outside the State of Illinois. I
find that the Respondent is, and has been at all times
material herein , engaged in interstate commerce within
the meaning of Section 2(6) and (7) of the Act and that the
purposes of the Act will be effectuated by the Board's
assertion of jurisdiction in this case over its operations.
II. THE LABOR ORGANIZATION INVOLVED
The Union herein is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint , as amended , alleges that the
Respondent (a) kept the union or other concerted activities
of its employees under surveillance ; (b) granted an
additional paid holiday , announced and granted additional
vacation , overtime compensation, and group insurance
benefits to its employees , and granted an increase in wage
rates to its employees in order to interfere with their
choice of a bargaining representative or as an inducement
for the employees to reject the Union ; (c) promulgated,
announced , and discriminatorily enforced a rule for the
purpose of interfering with, restraining , or coercing its
employees ; (d) interrogated an employee ; and that by each
of the foregoing the Respondent interfered with,
restrained , or coerced its employees in the exercise of
their rights protected by Section 7 of the Act thereby
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and 2 (6) and (7) of
the Act.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer the Respondent denied keeping the union
or concerted activities of its employees under
surveillance; admitted the announcement and grant of
benefits but not for the purposes alleged by the General
Counsel; denied that it promulgated and announced a rule,
stating that it called attention to reasonable rules and
stated that such rules would be enforced; and denied that
it discriminatorily enforced such rules or that such rules
were promulgated and announced for the purpose alleged
by the General Counsel. The Respondent denied
interrogating an employee and denies the commission of
any unfair labor practices.
A. The Alleged Surveillance
The General Counsel alleges that various of the
Company's managerial and supervisory personnel named
in the complaint stationed themselves in the area of the
employees' doorway or by the windows facing the
employees' doorway of the company plant during the times
that agents of the Union and employees of the Respondent
attempted to handbill and communicate with the
employees of the Company; and that Robert Boyer took
pictures of or purported to take pictures during the
handbilling activity at plant premises, all for the purpose
of keeping under surveillance the union or other concerted
activities of its employees, engaged in for the purpose of
collective bargaining or other mutual aid or protection.
The Respondent denies that it kept the activities of its
employees under surveillance for the purpose alleged.
Sam Matyas, a field representative for the Union, who
testified on behalf of the General Counsel concerning the
handbilling activities, stated that when he first started the
distribution of leaflets at the Respondent's plant about
September 14, 1965, no members of company
management or supervisors were observed in the area of
the handbilling. Matyas testified that the handbilling took
place from about 6 a.m. to 7:05 a.m. at the employees'
entrance at the side of the building, with Matyas and his
helpers, Broaddus and Hendricks, both union field
representatives, standing about 10 to 15 feet from the
building. Subsequently, when the same group conducted
handbilling on October 1, 1965, in the afternoon from
about 4:15 to 4:45 p.m. he observed approximately six or
seven men in white shirts standing inside the employees'
entrance looking out at the handbillers. Matyas identified
Louis Name, Bob Boyer, and Gunnard Carlson , among the
observers with Mike Provi looking out of an upstairs
window. The men came out of the building, engaged the
handbillers in conversation, then returned inside. They
remained in the area while the employees were leaving the
building, conversed with employees, and observed the
handbilling for the 45-minute period. Subsequently on
October 7, 1965, at the same time in the afternoon, at the
same place, the same men were observed in the area by
Matyas. According to Matyas the men attempted to secure
some of the leaflets. Matyas testified that they were asked
to go inside the building where they continued to converse
with each other and with employees-. Matyas further
testified that later, on October 13, 1965, during morning
handbilling from 6 to 7:05 a.m. Louis Name was observed
standing inside the employees' entrance looking out at the
handbillers. He opened the door, came out, and was asked
to go back into the building which he did. At this time,
according to Matyas, Name held up a newspaper clipping
inside the window, pressed it against the window, where
Matyas could see "Hoffa" printed in bold type. Later,
during the morning handbilling on October 20, 1965,
Matyas observed Louis Name and Bob Boyer standing
inside the employees' entrance, with Boyer taking pictures
of the handbillers with a movie camera.
According to Matyas, during the period October 20,
1965, through March 4, 1966, the date of the election,
handbilling was conducted at the Respondent's plant
approximately 40 times usually by Matyas, Broaddus,
Hendricks, and employee Betty Allred, at the same place
10 or 15 feet from the employees' entrance. During this
period company management and supervisory personnel
were observed in the area. Louis Name was there on every
occasion, Bob Boyer about half the time. On March 4,
1966, the date of the election, Matyas handbilled in the
morning with Broaddus, Hendricks, and a group of
employees. On this date Louis Name, Frank Laine, and
Herbert Rathke, company president, were observed in the
area.
The foregoing testimony by Matyas was essentially
corroborated by testimony given by employees Lenna
Bond, Judy Gulbrantsen, Elizabeth Allred, and Frances
Early. Allred testified, however, that she did observe
Boyer in the employees' entrance at the end of each
workday for a 2-week period earlier in July.
Louis Name, plant superintendent for the Respondent,
testified that he had held the position of plant
superintendent for 3 years, that during that time he always
reported for work anywhere from 6:20 a.m. to 6:40 a.m. He
testified to his normal procedure upon reporting in the
morning, which included going to the degreasing room
checking boilers, steam, spray, and washing zones, and
assuring that operations were ready to commence at
7 o'clock sharp. The degreasing area is about 40 to 70 feet
from the employees' door. Name would go from there
upstairs to the paint department which is lust above the
personnel office on the second floor to check the ovens,
then "occasionally I make a pass through the personnel
office because of the fact that the phone upstairs is not
plugged in until a quarter to 8 and if the phone is ringing I
will accept some calls on people who are not going to be
there for the day or for something that comes up that they
want me to pass the word on to their foreman until the
personnel girl gets there at 7." Name testified that he
would then check the timerack, to see approximately how
many employees are on the lower floor and see how many
people are coming into the plant, to get a general idea of
how many employees are available to start the three
assembly lines. With respect to his normal practice in the
afternoon at quitting time Name testified that he normally
was down in the personnel office. He testified that since
the personnel girl left at 3:15 p.m. at a time when the
personnel manager is busy with either cash sales, signing
manpower slips, or talking with employees, that since
August 1965 he would stand at the personnel door near the
employees' entrance where he would watch for plant
security as employees went out the door. Name admitted
that he was in the area of the handbilling during the
distribution activity but not for the purpose of
surveillance.
There was testimony on behalf of the General Counsel.
by Reynolds, an employee of the Respondent, that from
December 1964 through May 1966 he normally had coffee
in the morning on the first floor about 20 to 30 feet away
from the employees' entrance, where he could observe the
employees' entrance, that he did not observe Name in the
area prior to October 1965 but did observe him there
between October 1965 and the date of the election. There
THE BREARLEY COMPANY
was testimony by other employees of the Respondent
indicating that Name had not as a rule been observed in
the area at opening or closing time prior to October 1965.
I am persuaded by substantial credible testimony of
record and from my observation of the demeanor of the
witnesses as they testified, that Name stationed himself in
the area of the employees' doorway at the beginning and
close of the workday, starting in October 1965, and
throughout the period of the organizing campaign, for the
purpose of surveillance of the union and concerted
activities of the employees of the Respondent. The
incident of the newspaper clipping, the testimony
concerning which I credit, and the taking or purported
taking of photographs by Boyer, the testimony concerning
which I also credit, and which was not satisfactorily
explained by the Respondent, are symptomatic of the
basic purpose of the conspicuous presence of the plant
superintendent in the area and at the times when union
activity would normally be conducted. I credit the
testimony of Matyas, Bond, Allred, and Reynolds, and find
the testimony of Name to be somewhat contrived. I am not
persuaded by the Respondent's argument that Name was
exactly where he was supposed to be. Had it been
established that Name was ordinarily and conspicuously
observed in that area regularly at starting and quitting
time prior to the advent of the union campaign, I would not
have found as I do. However, I am convinced that it was
only after the union handbilling started in September 1965
that the practice was initiated by the Respondent of
stationing Name in that precise area, under circumstances
where his presence was conspicuous to all. The effect of
this surveillance, in my opinion, was to interfere with and
cool the ardor of the Respondent's employees in the
exercise of their rights guaranteed to them under Section 7
of the Act, and I find it to be violative of Sections 8(a)(1)
and 2(6) and (7) of the Act.
B. The Alleged Interrogation
The General Counsel alleges that during the latter part
of February 1966 the Respondent by and through its agent,
Louis Name, questioned and interrogated an employee of
the Respondent regarding the employees' union
sympathies. The Respondent denies the allegation.
Carol Jean Combs, an employee of the Respondent for
over 7 years, testified to a conversation which she had with
Louis Name in the latter part of February 1965, at her
place of work at the feedline. Combs testified:
First we discussed an employee I asked Louis Name
about earlier in the morning and then Louis said,
"Carol, I heard an ugly rumor upstairs. A girl upstairs
said you were for the guys outside." He said, "Is this
true?" I kind of shrugged my shoulder. He said, "You
see what happened to the Roper plant and Barbara
Coleman." He said, "You know this is not Russia. It is
a free country. You can vote the way you want." He
said, "You have been here off and on since 1958."
And he said, "I kind of like to look to the older girls,"
he said, "it doesn't really matter too much what the
younger ones or the" . . . it didn't matter too much
about the younger ones.
Combs' testimony was uncontradicted and I credit her
statement. Considering the posture of the organizing
campaign, the commencement of the election, the union
animus of the Respondent amply apparent from the record
as a whole, the fact that the conversation was carried on by
the plant superintendent at the employee's workpost, the
641
use of the phrase, "ugly rumor" and all the circumstances,
I am convinced that Louis Name interrogated Carol Jean
Combs as to her union sympathies and activities and did
thereby interfere with, restrain, or coerce the employees of
the Respondent in the exercise of rights guaranteed to
them by Section 7 of the Act in violation of Sections 8(a)(1)
and 2(6) and (7) of the Act.
Additionally, the record discloses that the Respondent's
employee, Chuck Reynolds, testified to a conversation
which he had with Louis Name, Bob Boyer, and Bob
W hito in the Respondent's personnel office late in January
1966, at which time and place, according to Reynolds, the
following took place:
Well, I went in the personnel office and Boyer asked
me if I was aware of a bulletin that they had coming
out saying that we weren't supposed to solicit,
organize or try to get the general opinion of people
about the Union or we could be fired. And I told him I
was aware of it, and then Louis Name said they was
going to give me a break, they could fire me for that
but they were just going to give me a warning this
time. Boyer asked me if I would sign a statement that
I wouldn't do it again . I told him I would. At that time
he drew up a statement and I signed it and then Louis
Name asked me, "Well how do you feel about the
Union?" And I told him I was for it 100 percent. And
he asked me why, and I told him I thought it would
help the people. And he told me they were just leading
us around by the hand. And he said that was all, I
could go.
Louis Name, testifying on behalf of the Respondent
remembered being in Boyer's office when Reynolds
arrived and remembered that the discussion involved
solicitation. Name testified that he left the meeting after
Boyer had talked to Reynolds and before Reynolds left,
did not see Reynolds sign anything, and did not recollect
or recall a statement like, "We're giving you a break; we
could fire you; we are giving you another chance," being
made. Based on my observation of the demeanor of the
witnesses I credit the testimony of Reynolds. Although the
interrogation of Reynolds was not specifically alleged in
the complaint, I find that it is within the charge and
framework of the complaint and was fully litigated.
Granada Mills, Inc., 143 NLRB 957. I find, therefore, that
the Respondent interrogated Reynolds as to his union
sympathies thereby interfering with, restraining, and
coercing the employees of the Respondent in the exercise
of union or concerted activity protected by the Act, in
violation of Sections 8(a)(1) and 2(6) of the Act.
C. The Alleged Promulgation, Announcement, and
Discriminatory Enforcement of Rules
The General Counsel alleged that on or about October 1,
1965, the Respondent by W. H. Ratlike, company
president, promulgated and announced that the following
rules would be in force and effect:
(1) Only employees reporting for work and persons
entering on company business are allowed in the plant
or on company property. Employees are permitted on
company property only when scheduled for work and
a reasonable time before and after working hours.
(2) Employees shall not, during working time,
neglect their assigned work, disturb others, interfere
with the work of others, or engage in activities not
related to assigned work.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) There shall be no solicitations, distributions or
the conducting of other than company business by an
employee during working time.
(4) Anyone who attempts union organizing activity
during working time and thereby neglects his own
work or interferes with the work of another will be
subject to discharge.
The General Counsel also alleged that the Respondent
promulgated, announced, and maintained the foregoing
rules for the purpose of interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and that the Respondent, during January or
February 1966, unfairly and discriminatorily enforced the
foregoing rules for the purpose of interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization and to engage in concerted
activities for the purpose of collective bargaining.
The Respondent denies that it "announced and
promulgated" the foregoing rules and states that it called
attention to these reasonable rules and stated that they
would be enforced. The Respondent denies that it
promulgated, announced, and maintained these rules for
the purpose alleged by the General Counsel and denies
that it unfairly and discriminatorily enforced the rules for
the purpose alleged by the General Counsel.
Testimony of record establishes that on or about
September 14, 1965, the Union commenced its campaign
to organize the employees of the Respondent by initiating
the distribution of handbills in front of the doorway of the
plant. The first handbilling was conducted from
approximately 6 a.m. to 7:05 a.m. about 10 or 15 feet from
the plant and the distribution was effected by Matyas,
Broaddus, and Hendricks, union representatives. On the
same morning the Respondent, according to testimony by
Rathke, concerned with the impression given by the union
leaflets to its employees, decided to distribute a bulletin to
explain the Company's position. The Respondent
contends that since the existing company rule was
considered too mild to meet the situation , it called to the
attention of the employees the rules as set forth in the
bulletin. An examination of the earlier rule, contained in
the Respondent's employees' manual indicates that it
states that: "Solicitation of money for flowers or gifts to
employees, while very commendable, are a disturbance
through the plant, and we ask that you cooperate by
refraining from this practice unless specifically authorized
by the management ." This is clearly oriented toward
solicitations for money for flowers and gifts. In addition,
there was included the following: "Lottery enterprises of
any kind cannot be permitted in our plant. Ticket selling,
soliciting of subscriptions and selling of merchandise of
any kind, will be permitted only when advance authority is
given by the management." There is ample credible
testimony of record, establishing the fact that while these
rules were in effect check pools, lottery tickets, and
Christmas solicitations were permitted with the
knowledge of management, and that the rules, as
announced in the employee handbook, were not strictly
enforced. Additionally, by their terms the rules permitted
exceptions with management approval, a feature omitted
from the rules announced in the "Bulletin" in September
1965.
It is obvious, therefore, that the rules announced by the
Respondent in September 1965 through the medium of a
published bulletin following the initiation of handbilling
activities by union representatives and company
employees were, in fact, new rules specifically
promulgated by the Respondent to cover the situation
created by the concerted or union activities of its
employees. The Respondent's president, Rathke,
testified: "Well, we were concerned when this handbill
was received by the employees from the Union because in
our opinion it gave the employees the impression that they
could do most anything they chose to do to try to organize
our plant, and having discussed this with Mr. Fahy, we
agreed that something should go to the employees
immediately from the Company so that they would exactly
understand our position and their position."
As the Board stated in Peyton Packing Company, 49
NLRB 828, 843, quoted with approval in Republic Aviation
Corporation v. N.L.R.B., 324 U.S. 793:
The Act, of course, does not prevent an employer
from making and enforcing reasonable rules covering
the conduct of employees on company time. Working
time is for work. It is therefore within the province of
an employer to promulgate and enforce a rule
prohibiting union solicitation during working hours.
Such a rule must be presumed to be valid in the
absence of evidence that it was adopted for a
discriminatory purpose. It is no less true that time
outside working hours, whether before or after work,
or during luncheon or rest periods, is an employee's
time to use as he wishes without unreasonable
restraint, although the employee is on company
property. It is therefore not within the province of an
employer to promulgate and enforce a rule prohibiting
union solicitation by an employee outside of working
hours, although on company property. Such a rule
must be presumed to be an unreasonable impediment
to self-organization and therefore discriminatory in
the absence of evidence that special circumstances
make the rule necessary in order to maintain
production or discipline.
The General Counsel contends that a reading of the
rules as published by the Respondent in its "Bulletin"
communicates the idea that the rules would be
transgressed if an employee of the Respondent on leave-
of-absence, layoff, or a day off work appeared in the plant
or on the Respondent-owned area of the parking lot and
discussed the subject of the Union with fellow employees
even though the discussion took place in a nonworking
area and during nonworking time. The General Counsel
sees the first two rules as ambiguous and susceptible to
misinterpretation by the employees so as to cause them to
refrain from exercising their statutory rights, creating the
impression that they acted at their own peril in engaging in
any organizational activity on the Respondent's premises
either before the workday began, or after the workday
ended, or on any day that they were not scheduled to work.
I find it unnecessary to reach this question, for assuming
arguendo that the rules herein were to be considered as
valid on their face I would nevertheless find them violative
of the Act. As stated by the Board in Pepsi Cola Bottlers of
Miami, Inc., 155 NLRB 527, "Although the Respondent's
no-solicitation rule might be valid and enforceable under
different circumstances, the record here demonstrates
that the Respondent was motivated by discriminatory
considerations in promulgating and enforcing the rule." In
Ward Manufacturing Inc., 152 NLRB 1270, the Board
found evidence of discriminatory purpose in the fact that
the rule was directed at "outside organizations" and also
in the precipitous promulgation of the rule. The
THE BREARLEY COMPANY
promulgation of the rules herein were similarly
precipitous, coming hard on the heels of the opening of
organizing activity. In the case-at-hand the Respondent
has conceded that the motivating reason for posting the
rules was the commencement of union organizing activity,
that the rules were designed specifically to meet this
situation. It is also clear from the record that these rules
were more stringent than those formerly applicable to
other types of solicitation, scotching any consideration
that the Respondent would consider prior approval of such
solicitation. Ample credible evidence of record establishes
that the Respondent made no effort to prevent other types
of solicitations from being carried out by employees on
company time and property even though it had included a
prohibition to that effect in its employee handbook, while
the record discloses that the Respondent promptly
enforced its ban on organizing activity. I find, therefore,
that the Respondent imposed and enforced the rules with
discriminatory intent on a discriminatory basis noting that
the time of its promulgation came hard on the heels of the
opening of organizing activity, because it was more
stringent than old rules covering other types of solicitation,
and because other types of solicitation had been and were
continued to be permitted while the new rules were
promptly enforced. Accordingly, I find that the
Respondent discriminatorily promulgated and enforced its
no-solicitation rules and thereby violated Sections 8(a)(1)
and 2(6) and (7) of the Act.
D. The Alleged Grant of Benefits
The General Counsel alleges that the Respondent
through W . H. Rathke, company president , granted an
additional paid holiday to its employees ; announced and
thereafter granted additional vacation, overtime
compensation , and group insurance benefits to its
employees; and granted an increase in wage rates to its
employees , all in order to interfere with its employees'
choice of a bargaining representative or as an inducement
for them to reject the Union . The Respondent does not
dispute the grant of these benefits but denies that they
were effected in order to interfere with its employees'
choice of a bargaining representative or as an inducement
for them to reject the Union, ascribing as the reason
therefore legitimate business considerations economically
motivated.
The Respondent adduced considerable testimony
establishing the origins of the decisions to grant the
improvements and the elements considered in arriving at
the decisions. Essentially , the testimony indicated that
discussions as to the benefits started as distantly as March
1965 soon after Frank Laine, company assistant treasurer-
controller , took over the personnel functions of the
Respondent . There was testimony on behalf of the
Respondent by several witnesses indicating that a group
consisting of Personnel Director Boyer , Frank Laine,
Works Manager Carlson , and Plant Superintendent Name
studied and discussed pertinent data, then took up matters
with Executive Vice President McDonald. These
discussions included consideration , among other things, of
an annual survey, the Atwood Survey on wages and
benefits conducted usually in March of each year and
published to subscribers a month or two later. In the
deliberations on the improvements at issue there was also
included an additional in-house survey conducted by
Personnel Manager Boyer . Testimony indicated that at a
point when the group , after meeting with McDonald, had
643
arrived at specific recommendations, the matter would be
presented to President Rathke who made the final
decision.
The Respondent established by testimony that the
October 7 announcement of an additional paid holiday was
based, among other factors. on information supplied in the
Atwood Survey indicating that more than a majority of the
companies were already providing their employees with
the additional paid holiday. The timing of the
announcement of the benefit in October was explained by
Rathke on the basis that the group considering the matter
made their recommendation to Rathke in August 1965 and
that after additional consideration the benefit was
approved and announced in October. Rathke also
explained the basis and the timing of the decision to
provide additional vacation, overtime compensation, and
group insurance benefits on November 22, 1965, and
explained the grant by the Respondent of a general wage
increase on March 14, 1966, 10 days after the election.
Witnesses for the Respondent also established the basis
for the decision and the timing of this benefit. I am
convinced by substantial credible testimony of record that
the improvements at issue were in fact considered by the
Respondent, taking into consideration the normal
management sources of information, and that the
decisions to confer such benefits were based on valid
economic considerations. However, while the Respondent
has established a bona fide economic requirement for the
granting of the benefits I am convinced under all the
circumstances of this case and I find that the benefits
were granted for the purpose of interfering with and
influencing the employees in their conduct of protected
activity.
Accepting the Respondent's version of its deliberations
over the economic aspects of the benefits, and accepting
its position that it used various surveys and data in the
course of such deliberations a question is posed as to the
timing of the grants. For it may be determined from the
record that the Respondent, with the basic data already on
hand and with the decisional process simple to run,
delayed the grant of benefits until strategic points in time
on October 7, when the concerted activities of its
employees had just begun and on November 22, when they
were on the verge of ripening into a formal request for
recognition and when such conferral of benefits would be
most effective as an antiunion measure. The reasons
advanced by the Respondent for its timing of the grants
are not persuasive as was its proof of the economic
requirement. Accordingly and considering also the
Respondent's other unlawful conduct, I find that by its
conferral of benefits on October 7 and November 22 the
Respondent interfered with, restrained, and coerced its
employees in the conduct of protected concerted activity
and thereby violated Section 8(a)(1) of the Act.
As for the grant of benefits subsequent to the election, it
is generally recognized that the Act, as construed by the
Board and the courts, places the employer in a rather
difficult position when he is impelled by bona fide
economic considerations to revise his wage structure while
a representation proceeding is pending. In N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405, the Supreme
Court stated that if, while a representation election is
pending, benefits are conferred for the purpose of
inducing employees to vote against the union the Act is
violated. While, as the Respondent points out the benefits
granted on October 7 and November 22 were conferred
prior to the union petition on November 26, the principal
295-269 0-69-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enunciated in Exchange Parts, supra, has been applied by
the Board to the situation after an election where
objections to the election are pending, Ambox,
Incorporated, 146 NLRB 1520. The question is whether
the benefits are granted for the purpose of affecting the
pending representation proceeding. In Champion
Pneumatic Machinery Co., 152 NLRB 300, where the
Board held that the benefits therein granted were not
granted for the purpose of affecting the pending
proceeding the Board adverted to the circumstances
prevailing in Ambox, supra, and found that they were not
present in the case under consideration indicating that
each case must stand on its own facts and circumstances.
An analysis of the case here at hand presents
circumstances prevailing in Ambox in that here there is,
for consideration, the Respondent's earlier unlawful
conduct in the surveillance and interrogation of its
employees and the unlawful promulgation and
enforcement of its no-solicitation rules all of which I am
convinced were part of a clear overall plan on the part of
the Respondent to discourage membership in the .Union
and to influence the employees in their choice or rejection
of a bargaining representative. Consequently, I find the
grant of benefits by the Respondent herein subsequent to
the election calculated to interfere with and influence its
employees in the choice of a bargaining representative and
therefore interferes with, restrains, and coerces
employees in violation of Section 8(a)(1) of the Act.
IV. THE OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE ELECTION
The matters raised by objection 2 and additional
allegation (a) of the objections, not disposed of in the
report on objections were referred to the Trial Examiner
for disposition here. They allege, as Objection 2, that on
numerous occasions company officials and supervisors
spoke to employees on the bargaining unit and promised
them benefits for voting against the Union and in other
ways coerced the employees in their selection of a
bargaining representative; and as additional allegation (a)
that the Respondent engaged in unlawful surveillance of
the concerted activity of its employees.
In view of the findings, supra, of violations of Section
8(a)(1) of the Act by the Respondent herein through its
conduct of unlawful surveillance, unlawful interrogation of
employees, unlawful grants of benefits, and unlawful
promulgation and enforcement of no-solicitation rules, and
to the extent that such conduct and violations occurred
within the period commencing November 26, 1965, the
date of the filing of the petition and March 4, the date of
the election, and including the grant by the Respondent on
March 14, 1966, of a general wage increase during the
pendency of the objections to the election herein, I hereby
find that Objection 2 and additional allegation (a) have
been established by ample credible testimony on the
record. Accordingly, I find that during said period the
Respondent through its conduct aforesaid exercised a
coercive influence on its employees sufficient to interfere
with and prevent a free, fair election and did deprive the
Respondent's employees of their right under the Act to
choose or not to choose a bargaining representative free
from interference by the Respondent. It is accordingly
recommended that the election conducted on March 4,
1966, be set aside and declared a nullity and that the
Board conduct a second election by secret ballot at such
time as it shall deem appropriate.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Brearley Company, the Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Warehouse and Mail Order Employees Union, Local
No. 743, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By its conduct of interrogation, surveillance, grant of
benefits, and promulgation and enforcement of rules set
forth in section III hereof, which have been found to
constitute unfair labor practices, the Respondent has
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed to them by Section 7 of
the Act and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices , it is recommended that it
cease and desist therefrom and that it take certain
affirmative action necessary to effectuate the policies of
the Act.
In view of the findings that certain objections to the
election herein have been sustained it is recommended
that the election be set aside and declared a nullity and
that a second election by secret ballot be conducted at a
time deemed appropriate by the Board.
[Recommended Order omitted from publication.]
K. & H. Specialties Co., Incorporated and
Lowell B. Hanon , Sr., An Individual and
Printing Specialties and Paper Products
Union No. 550, International Printing
Pressmen and Assistants ' Union of North
America, AFL-CIO. Case 7-CA-5100.
March 28,1967
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 18, 1966, Trial Examiner
Milton Janus issued his Supplemental Decision,
attached hereto, finding that specific amounts of
backpay be awarded to certain employees of the
163 NLRB No. 79