The Deutsch Co.

National Labor Relations Board - Board Decisions

May 31, 1967

165 N.L.R.B. 140 (N.L.R.B. 1967)

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Deutsch Company, Electronic
Components Division , a Corporation and
United Steelworkers of America, AFL-CIO.
Cases 21-CA-7240 and 21-CA-7262.
May 31,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 17, 1967, Trial Examiner Stanley
Gilbert issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices, and
recommended that the allegations of the complaint
pertaining thereto be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
has requested oral argument.[
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, and the entire record in this
case, including the exceptions and brief, and hereby
adopts the findings,2 conclusions, and
recommendations of the Trial Examiner.
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, and
hereby orders that the Respondent, The Deutsch
Company, Electronic Components Division, a
Corporation, Banning, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
charge in Case 21-CA-7240, filed June 9, 1966, by United
Steelworkers of America, AFL-CIO, hereinafter referred
to as the Union, and a charge in Case 21-CA-7262, filed
July 11, 1966, by the Union, a consolidated complaint was
issued on July 22,1966. The complaint, as amended during
the course of the hearing,' alleges in essence that The
Deutsch Company, Electronic Components Division, a
Corporation, hereinafter referred to as the Respondent or
the Company, violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. Respondent,
in its answer, as amended during the course of the
hearing,2 denies that it committed the unfair labor
practices alleged.
Pursuant to notice, a hearing was held on November 21
and 22, 1966, in San Bernardino, California. Within the
time set therefor, briefs were submitted by counsel for the
General Counsel and the Respondent.
Upon the entire record herein and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a California corporation with a plant in
Banning, California , is engaged in the production and sale
of miniature electrical connectors used in the aerospace
industry . In the course and conduct of its business
operations , Respondent annually sells and ships from its
said plant goods valued in excess of $50 ,000 directly to
points located outside the State of California.
As it has conceded , Respondent is, and at all times
material herein has been , an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent, the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There is little contradictory evidence with respect to
matters material to the issues herein. For the most part the
issues are related to Respondent's conduct in prohibiting
the distribution of union authorization cards inside its
plant. There is no controversy as to what conduct it
engaged in, but rather the major issue is whether or not, in
the circumstances of this case, the limitations imposed by
Respondent on distribution and solicitation were unlawful.
A. Summary of Events
The facts set forth in the following summary of events
are undisputed.
Commencing on June 1, 1966, certain of Respondent's
employees, particularly Daniel Salcido, George Pacheco,
' This request is hereby denied because the record, the
exceptions, and the brief adequately present the issues and the
positions of the parties.
2 In the absence of exceptions thereto, we adopt pro forma the
Trial Examiner's finding that Respondent's letter of July 14, 1966,
was not violative of Section 8(a)(1) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner : Based upon a
165 NLRB No. 5
' The complaint was amended by striking from paragraph 8(a)
the word "promulgated."
2 The Respondent amended its answer to paragraph 8(a) of the
complaint by alleging that the rule referred to in said paragraph
was "promulgated" prior to the 6-month period preceding the first
charge filed herein No issue was raised by this amendment
inasmuch as the word "promulgated" was stricken from
paragraph 8(a) of the complaint, as indicated hereinabove The
answer was further amended to admit paragraph 3 of the
complaint (alleging that the Union is a labor organization within
the meaning of the Act)
THE DEUTSCH COMPANY
Robert Carrillo, Charles Callihan, and Mark Grim,'
distributed union authorization cards to their fellow
employees at various entrances to the plant, notably at the
"north" or "airplane" gate and at the "east" gate. The
north gate affords an entrance from a public street,
whereas the east gate is between the Company's private
parking lot and the so-called security area of the plant.
Said employees distributed the authorization cards in the
mornings, prior to the commencement of the workday. In
some instances they did so within the security area; i.e.,
inside the gates. On most occasions they distributed the
cards outside said gates; i.e., on the street side of the north
gate or in the parking area outside the east gate.
On July 8, Salcido and Callihan distributed
authorization cards in the Company's lunchroom during
the lunch break. Later that day, Salcido and Callihan were
given 3-day disciplinary layoffs for doing so.
On or about July 14, 1966, the Respondent sent a letter
to its employees with a stamped postcard enclosed. The
card was addressed to the National Labor Relations Board
and contained the following:
Re: Deutsch Electronic Components Division
Gentlemen:
Recently I signed a union representation card of the
United Steelworkers of America because of
misinformation or duress.
I hereby revoke my authorization for all purposes.
................
SIGNATURE
DATED ................
Commencing in 1962, the Respondent distributed to
new employees a booklet referred to as the "welcome"
booklet or manual. It contained, on page 15 thereof, the
following paragraph:
COLLECTIONS AND GIFTS:
The solicitation of funds for any purpose, the sale of
tickets for all purposes, the operation of lotteries and
raffles, and the solicitation of membership in
organizations during working hours on Company
property are absolutely prohibited.
B. The Issues
Following are the issues raised on this proceeding:
1. Whether special circumstances are present in this
case which would make it lawful for Respondent to
maintain and enforce a rule prohibiting solicitation of
signatures on union authorization cards and distribution of
union literature during nonworking time in nonwork areas
of its plant.
2. Whether, by maintaining and enforcing a rule
prohibiting solicitation and distribution on behalf of the
3 The employees individually named in the complaint as objects
of Respondent's unlawful conduct
4 While occasions may exist which would require drawing a
distinction between a rule against solicitation and a rule against
distribution, there are no factors in this case which require a
consideration as to whether the distinction should be drawn.
' The evidence with respect thereto is summarized
herembelow
141
Union at any time inside its plant, Respondent violated
Section 8(a)(1) of the Act.
3. Whether, by interrogating employees as to whether
they had engaged, or will engage, in such solicitation or
distribution, threatening them with reprisals if they
continued to do so, and engaging in other conduct
designed to enforce such prohibitions, including the
disciplinary layoff of two employees, Respondent violated
Section 8(a)(1) and (3) of the Act.
4. Whether by statements contained in its aforesaid
letter of July 14, 1966, sent to its employees, and by
enclosing the aforementioned postcards, Respondent
interfered with, restrained, or coerced its employees
within the meaning of Section 8(a)(1) of the Act.
C. Respondent's Conduct Re Solicitation and Distribution
It is well established that an employer's prohibition of
solicitation or distribution of literature on behalf of a union
during nonworking time in nonwork plant areas is
presumptively invalid. Stoddard-Quirk Manufacturing
Co., 138 NLRB 615; Gale Products, Div. of Outboard
Marine Corp., 142 NLRB 1246.4 The mere assertion of a
necessity to curtail such activity (without proof thereof) is
insufficient to rebut such a presumption. Korn Industries,
Inc., 161 NLRB 866. The record is clear that the
Respondent maintained and enforced a rule prohibiting
solicitation and distribution on behalf of the Union during
nonworking time and in nonwork areas of ' its plant,
particularly inside entrance gates before the workday
commenced and in the company lunchroom during the
lunch breaks
In chief, Respondent's defense is that the restraints it
imposed on distribution and solicitation were not unlawful
because they were justifiable in implementing its security
measures. Security measures, according to Respondent's
witness, were imposed in connection with Respondent's
work on classified materials under the Department of
Defense regulations and for internal security to prevent
loss of valuable metals used in production.
Considerable testimony was elicited from
Robert E. Bonn , Chief, Facilities Division Office of
Industrial Security, Defense Contract Administrative
Service Region, Department of Defense, Los Angeles, as
to the regulations of the Department of Defense and the
security measures required of Respondent by the
Department of Defense in its handling of classified
materials. Testimony was also elicited from Respondent's
security officers with respect to measures employed to
protect classified material as well as measures to prevent
the loss of the aforesaid valuable metals. All of their
testimony, even when viewed in a light most favorable to
Respondent, fails to reveal any justification for prohibiting
solicitation and distribution on behalf of the Union in
nonwork areas during nonworking time.6
In the main , security was maintained by the following
measures : requirement of identification badges for
admittance to the plant (the so-called security area),' the
safekeeping of classified papers or classified materials,
and a check by guards of lunchboxes, briefcases, and
i No purpose would be served in detailing their testimony since
none of it affords any reasonable basis for the prohibitions
imposed by Respondent
r The so-called security area apparently consisted of all of the
company property other than the parking areas
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
packages carried by persons leaving the plant.8 While the
aforesaid measures would appear to be reasonable in order
to carry out Respondent's programs of defense security
and internal security, there is nothing in the record which
would furnish a basis for finding that the prohibition of
soliciting and distributing literature on behalf of the Union
in nonwork areas during nonworking time was reasonably
justified in order to carry on the operation of said security
measures.9
Employees Callihan, Salcido, Carrillo, Pacheco (called
as witnesses by the General Counsel), Supervisors Jan
Winterbourne, Peter Ostapow, Larry Pellerin, Kenneth
Moyers, and Guard Isaac Gilpin (called by Respondent)
testified as to the organizational activities of the
employees and as to Respondent's conduct with regard
thereto. There is virtually no material variation or
contradiction in their testimony which is summarized
hereinbelow and is credited unless otherwise indicated.'o
According to Callihan's testimony, on June 1 he and
fellow employees Salcido and Grim distributed
authorization cards outside the north gate prior to the
commencement of the workday without any incident. On
June 2, Callihan distributed cards outside the east gate
before the workday and a guard stated to him that he
"could get in trouble doing that."'t
Prior to the workday on June 3, Callihan and Grim
distributed cards some few feet inside the east gate.
Callihan testified that while they were doing so,
Winterbourne, Respondent's assistant personnel manager
and security officer, stated to him that he "could get in
trouble doing this" and gave him a warning notice wich
read as follows:
It is forbidden to hand out Union literature within the
Deutsch plant during working hours or rest periods.
This decision is based upon the National Labor
Relations Board Rules and Regulations. Continued
infraction will lead to dismissal.
Winterbourne apparently attempted to hand Grim a
similar notice , but Grim refused to take it.12 However, it
appears that Grim was aware of the contents of the notice.
Callihan testified that he asked Winterbourne, "Are you
telling me that I can't pass these out?" and Winterbourne
replied that "he wasn't telling me that I couldn't pass them
out; he was just saying that I would get in trouble."
Winterbourne testified that he walked up to Grim and
Callihan and stated to them, "We would prefer you passed
that out on the other side of the gate," and that when
Callihan asked if he was saying that they were not
permitted to pass out the cards, he replied, "No I'm not,"
and added, "I'm saying we would like to have you pass it
out on the other side of the gate." Callihan denied that he
was told that he could pass out the cards on the outside of
the gate. However, Callihan did admit that he said to
Winterbourne, "We will just stay here." Winterbourne's
testimony that he suggested they distribute the cards
outside is credited, since it fits the pattern of
Respondent's attitude with respect to the distribution of
cards outside the gate, and Callihan's admission that he
did say, "We will just stay here," indicates the likelihood
that it was in reply to a suggestion that the cards be
distributed somewhere else.
In his testimony, Winterbourne attempted to justify a
prohibition against distributing cards inside the gate on
the ground that it caused congestion at the gate and
interfered with the guard's duties in checking employees'
badges. This ground was also advanced by Respondent in
its brief. However, the record will not support a finding
that such was the actual reason or the reason
communicated to the employees for prohibiting the
distribution of cards inside the gate. Respondent
introduced into evidence pictures of traffic at the gate
"typical" of the amount of traffic at the time in question,
and Pellerin testified that during the incident he observed
about 45 employees entering the gate in the space of 4 or 5
minutes. The guard, Gilpin, testified that the traffic varied
from "two to half a dozen" coming in the gate and that
"They'd crowd in and try to go on through."
Neither the pictures nor the rate of 10 persons per
minute indicates that a volume of traffic existed which
would create the congestion suggested by Respondent's
witnesses. This conclusion is buttressed by the fact that
there was no mention at the time that congestion was the
reason for the warning notices.13 Moreover, Winterbourne
candidly admitted that "basically" his purpose in telling
them to go outside the gate was because he was attempting
to enforce the rule which prohibited passing out literature
inside the plant. That this was the reason is clear from the
very language of the warning notices.
Therefore, it is concluded that the warning notices and
the suggestion to Grim and Callihan that they distribute
the cards outside the gate were for the purpose of
maintaining and enforcing a rule against solicitation and
distribution of literature on behalf of the Union in the plant
even during nonworking hours in nonwork areas.14 It is
further concluded that the restriction against distributing
cards inside the gate was not imposed because of the
traffic situation at the gate, and that the record will not
support a finding that such a restriction was justified
because of the traffic situation. Assuming, arguendo, that
the amount of traffic at the gate did justify a prohibition
against passing out cards just inside the gate, it would not
8 Lunchboxes and briefcases are checked periodically Written
authorization from a supervisor is required in order to take out a
package.
0 Respondent advanced , as additional reasons for the
prohibition it imposed , interference with the guards at the gates in
checking badges and the possibility of discovering union
authorization cards in checking lunchboxes and briefcases. The
validity of these two reasons is discussed herembelow in
considering the testimony with respect to Respondent's conduct
in maintaining and enforcing prohibitions against solicitation and
distribution on behalf of the Union.
10 Whatever contradictions of any substance there are in the
testimony are indicated and resolved hereinbelow.
I This warning is considered herembelow in considering other
conduct of Respondent with respect to distribution of cards
outside the gates.
iz Callihan testified that Winterbourne gave Gnm a notice
However, Winterbourne testified, and his testimony is credited,
that Grim refused to take it. It is not clear from Callihan's
testimony whether Grim did or did not so refuse
13 Although Gilpin did, on cross -examination in answer to a
leading question , reply affirmatively that he requested Callihan
and Grim "to back up from the gate" because they were
interfering with his "duties," it does not appear that he stated that
reason to them Also, he testified he had been "instructed to tell
them to not pass out the literature inside the gates "
14 "It is, of course, clear that whether the 'distribution' of union
application cards be deemed to be solicitation or the distribution
of literature, a rule promulgated by an employer prohibiting such
activity during nonworking time in nonwork plant areas is
presumptively invalid "Gale Products, supra, 1248.
THE DEUTSCH COMPANY
justify the broad prohibition which was set forth in the
warning notices.15
Consequently, it is found that by the warning notices
which Winterbourne gave to Callihan and attempted to
give to Grim, Respondent maintained and enforced an
unlawfully broad prohibition against solicitation and
distribution of literature, on behalf of the Union, there
being no showing that circumstances existed which
justified the extension of such prohibition to nonwork
plant areas on nonworking time.16
That the Company unlawfully maintained and enforced
a rule prohibiting solicitation and distribution in nonwork
areas on nonworking time is further evidenced by the
uncontradicted testimony of Salcido. He testified that, on
January 1 prior to the start of the workday, while crossing
the "field" within the so-called security area, he handed
an authorization card to a fellow employee, and that the
guard "yelled" at him, "Hey, don't do that. You'll get fired
for doing that." It further appears from his testimony that
the guard would not permit him to distribute cards outside
the east gate but required him to go to the gate leading
from the street into the parking lot.
Salcido, Carrillo, and Pacheco testified that on June 3,
while they were distributing cards outside the north gate,
George Stanley, then Responent's personnel manager,
approached them and asked if they knew what they were
doing. The guard at the gate had taken down their names
from their badges and gave their names to Stanley. He
wrote their names down on warning notices and gave the
notices to each of the three. The warning notices
contained the following statement:
It is forbidden to distribute Union literature within
the Deutsch plant. This decision is supported by the
Rules and Regulations of the National Labor
Relations Board.17
The solicitation of membership in organizations
during working hours is expressly prohibited on page
15 of the Deutsch Indoctrination Manual given to
employees when they are hired. Continued infraction
will lead to dismissal.
The above-quoted rule against distribution anywhere in
the plant is unlawfully broad. While the rule against
solicitation stated in the warning notice might be
construed as lawful, the record discloses that it was
unlawfully extended to nonworking time as well as to
nonwork areas.
While the record discloses that the warning notices
given to Salcido, Carrillo, and Pacheco were subsequently
withdrawn with apologies, the record also reveals that
their withdrawal only indicated, and was only intended to
indicate, that the Company did not extend the unlawful
iS It should be noted that notices incorrectly stated that the rule
prohibiting distribution of union literature within the plant during
working hours and rest periods was based upon the Board's Rules
and Regulations
18 It is noted that the Board, in the Gale Products case, supra,
on p. 1248, also held that "as the distribution of union
authorization or membership cards is distinguishable from
handbilling and is a form of solicitation [citing Stoddard-Quirk
Manufacturing Co , supra], a rule against the distribution of such
cards is also presumptively invalid if applicable to nonworktime in
work areas of the plant."
" It is noted that this is an incorrect interpretation of the Rules
and Regulations.
1s Such as the guard warning Callihan on June 2 that he "could
get in trouble" distributing cards outside the east gate, and the
143
prohibition against the solicitation and distribution to the
areas outside its gates . The employees did engage in a
considerable amount of distribution of cards outside the
gates without incident, and despite the few incidents's
which did occur with respect to distribution outside the
gates, it is concluded that the employees reasonably
understood from such tolerance and from the indication of
the reason for the withdrawal of the notices that the
Company would permit distribution of the cards at said
points. However, this does not minimize the finding that
the Company unlawfully maintained and enforced a
prohibition against such activities in the so-called
security area of the Company's property and that the
rules which were enunciated in the warning notices were
not repealed by withdrawal of the notices.
On June 3, shortly after Callihan had been given a
warning notice for distributing cards inside the east gate,
he was called into an office and was introduced by his
supervisor, Peter Ostapaw, to George Stanley, then the
personnel manager. Stanley asked Callihan if he "knew
the difference between solicitation and passing out cards."
When he did not reply, Stanley said there was a difference
and that he was going to give him a warning notice.
According to Ostapaw, a witness called by Respondent,
Stanley also said to Callihan, "You know, it's against the
Company policy to go to work and hand out literature or
any solicitation of any kind and distribution of any kind on
Deutsch property." Stanley then handed Callihan a
warning notice which contained a statement similar to the
above-quoted notices given to Salcido, Carrillo, and
Pacheco. Callihan showed Stanley the notice that
Winterbourne had given him. Nevertheless, Stanley asked
him to sign the second warning notice, which Callihan
refused to do. Callihan testified as follows as to what then
occurred.
A. Well, then he [Stanley] asked me what my
intentions were, and I told him that I would keep
passing out cards until I ran out of cards or got fired.
And then he said, "whichever one comes first?"
And I said, "That's right, because I have a right to
do this."
And then he told me, he said, "Well, if you're here
doing this Monday morning, you won't be around no
more. "19
It is concluded that Stanley's interview of Callihan is
further evidence that Respondent maintained and
enforced an unlawfully broad rule against solicitation and
distribution. It is also concluded that Stanley 's questioning
of Callihan as to what his "intentions were" constituted
unlawful interrogation as to what protected activities he
planned to engage in, particularly in view of the fact that it
fact that, on June 1, Salcido also was told by a guard that he could
not pass out cards outside the east gate.
is Stanley was not called as a witness . Ostapaw's testimony
corroborates, in substance, that of Callihan except with respect to
that portion of Callihan's testimony which is quoted According to
Ostapaw's testimony, the interview concluded with Callihan's
refusal to sign the second warning notice Although Ostapaw did
not categorically deny the testimony quoted, he was asked if
anything else was said to which he replied, "not to my
knowledge " In view of Respondent's subsequent conduct in
giving disciplinary layoffs to Callihan and Salcido for violating the
prohibition against distribution of cards inside the plant, it is
deemed likely that Stanley did threaten economic reprisals for
failing to observe the prohibition and, therefore, the above-quoted
testimony of Callihan is credited.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was accompanied by a threat of discharge if he did not
abstain from protected activities which were prohibited by
Respondent's unlawfully broad rule.
Salcido was also called into an office for an interview
with Stanley on June 3. According to Salcido's testimony,
Stanley asked him if he still had the warning slip which
Stanley had given him earlier that day. He replied that he
had and, at Stanley's request, Salcido handed it to him.
Salcido testified as follows as to what then occurred:
... And he told me, "Was today the first day that
you passed out union literature?"
And I says, "No, sir."
And he says, "Was it yesterday?"
And I says, "No, sir. It was June the 1st that I
passed out union literature."
And he asked me to sign the warning slip again, and
I refused. And then he said that I had passed out
union literature inside the gate and I said, "No, sir."
And then he turned it over-I told him what had
happened about the guard, and he turned it over and
he wrote that down, that the guard had instructed me
to go outside to the road. And he says, "Well, initial
this."
And I said , "I don't see no reason why I should
initial it."
A. [Continuing] He pointed to the union button
and he said, "You tell the people that gave you that
button that we're not fooling." He says, "We don't
care about the National Labor Relations Board." He
says, "If you're out there Monday morning, we're
going to fire you." And he said, "It'll take at least
three months before we get into court, and what will
you be doing during this time?" He said, "You think it
over." And then he said, "Larry Pellerin and Peter
Ostapaw are my witnesses .... 1120
It is concluded that Stanley's interview of Salcido is
additional evidence that Respondent maintained and
enforced an unlawfully broad rule against solicitation and
distribution. It is also concluded that, by Stanley's
questioning of Salcido as to whether he had distributed
union literature prior to that date, Respondent engaged in
unlawful interrogation. Although this interrogation and the
questioning of Callihan by Stanley as to what his
intentions were about passing out cards were the only
incidents in the record of interrogation' 21 in view of the
circumstances in which the questioning occurred,
particularly the threat of discharge if they repeated the
"offense" of which they were unlawfully warned, a finding
that Respondent engaged in unlawful interrogation in
violation of Section 8(a)(1) of the Act appears to be
warranted.
20 As previously indicated , Stanley was not called as a witness.
Although both Pellenn and Ostapaw were called as witnesses
(both of whom Salcido testified were present during his interview
with Stanley), neither of them contradicted Salcido's testimony.
Pellenn was not questioned with respect to the incident and
Ostapaw testified that he did not recall being present. Since
Salcido's testimony was not contradicted and is deemed plausible
in light of the circumstances , it is credited.
21 There was another incident of interrogation to which Carrillo
testified , but it was not unlawful Carrillo had complained to his
immediate supervisor about the warning notice he had received
and his supervisor asked him where he had been passing out the
authorization cards, apparently only in order to judge whether
Carrillo's complaint was justified
Both Callihan and Salcido testified that during the
Union' s organizational campaign they observed a notice on
the bulletin board which contained language similar to that
contained in the warning notices. Their testimony is
credited and indicates a further basis for finding that
Respondent maintained and enforced an unlawfully broad
prohibition against solicitation and distribution on behalf
of the Union.22
General Counsel contends that Respondent engaged in
unlawful surveillance and predicates this contention on
the testimony of Salcido and Pacheco. Salcido testified
that he, Callihan, and a representative of the Union
approached the north gate ostensibly to distribute cards.
His testimony as to what then happened is as follows:
A. [Continuing] And George Stanley was inside
the plant and he was coming out and we got there just
about the same time, to the gate. When he saw us
coming-drive through, I guess-he was some place
where he saw us and he got to the gate just about the
same time, and he just greeted us with, "Good
morning," and just kept his head down.
When he saw George Sirolli [the union
representative], he didn't do nothing. He said a
couple words to the guard, and then walked back in.
Pacheco testified that while he and others were
distributing cards outside the north gate, he observed
Pellerin and Ostapaw looking at them around the corner of
a building some 300 to 350 feet away.
In view of the openness with which cards were
distributed outside the gate, it appears inappropriate to
conclude from Salcido's testimony that Stanley was
engaged in unlawful surveillance and from Pacheco's
testimony that Pellerin and Ostapaw were surreptitiously
attempting to observe the distribution of union cards at a
distance of 300 to 350 feet.23
Salcido, Carrillo, and Pacheco testified without
contradiction that on June 3, after Stanley had given them
the warning notices above mentioned while they were
distributing cards outside the north gate, Stanley said to
them, "I'd like to give you another warning. Don't bring
those cards in here with you." Salcido and Callihan
testified without contradiction that on July 8 they
distributed authorization cards in the company lunchroom
during the lunch break. All of the witnesses agreed that
Salcido and Callihan were called into an office a short
while thereafter and were given disciplinary layoffs to
July 13 for distributing cards in the lunchroom.
Respondent defends the disciplinary layoffs and its
conduct in prohibiting cards being brought into the plant
and being distributed inside the plant on the ground that it
might inadvertently commit an unfair labor practice by a
discovery of the cards in the course of the periodic checks
22 The Respondent introduced no evidence to contradict the
above testimony but argues , in its brief, that the testimony with
respect to the notice was vague as to its contents. While there is
some merit in Respondent 's characterization of said testimony as
vague, nevertheless, the testimony is sufficiently clear to permit
an inference that the notice unlawfully prohibited distribution of
union literature during nonworking time in nonwork areas.
23 Furthermore, the explanation in the record , that Pellerin and
Ostapaw were walking up an incline which caused them to lean
forward and thus seem to be peering around the corner of the
building, appears to be plausible , since no reason appears to exist
why they should have attempted to conceal their observation of
Pacheco and his fellow employees distributing union cards
outside the gate.
THE DEUTSCH COMPANY
by guards on employees' briefcases and lunchboxes.
There is no merit to this defense. An inadvertent discovery
of an authorization card in the possession of an employee
would not be considered an unfair labor practice, and the
prohibition against bringing cards into the plant and
distributing them in nonwork areas during nonworking
time is not justified as a means of avoiding the inadvertent
discovery of cards. Consequently it is concluded that such
a prohibition constituted unlawful maintenance and
enforcement of a rule proscribing such protected activity
in violation of Section 8(a)(1) of the Act. It is further
concluded that the disciplinary layoffs of Callihan and
Salcido for distributing the cards in the lunchroom during
the lunch break in enforcement of said unlawful
prohibition is violative of Section 8(a)(3) and (1) of the Act.
The warning notices and other statements found to have
been made to employees of action that Respondent would
take against them if they persisted in violating
Respondent's prohibition against solicitation and
distribution of literature on behalf of the Union amply
support a finding that Respondent violated Section 8(a)(1)
of the Act by threats of economic reprisal for violations of
its unlawfully broad rule proscribing solicitation and
distribution.
D. The Letter of July 14
As indicated above, on or about July 14, Respondent
sent a letter to its employees with a stamped postcard
enclosed. The card bore the address of the National Labor
Relations Board and on its opposite side contained a
statement which, if signed by any employee in the place
designated, constituted a revocation of his union
authorization card.
The General Counsel contends that the letter, "among
other things, intimated that employees who engaged in
distribution of union authorization cards would suffer
reprisals." An examination of the letter reveals that the
only possible statement contained therein which could
tend to support said contention is in the first paragraph
which, in part, reads as follows:
For almost two years the Steelworkers union has been
outside our gates. Now they have bamboozled several
short-time, misguided employees of Deutsch to act as
their agents within the gates. These youngsters have
been directed to bring the union inside the gates and
into the lunch rooms. Last Friday [7-8-66] these
would-be union organizers went so far as to force
union authorization cards upon the employees in the
lunchrooms.
It is possible that General Counsel predicates his
contention on the reference to "several short-time,
misguided employees," particularly the word "short-
time." It would require a rather strained construction to
conclude that by the use of said word, Respondent
intended to and did reasonably convey the impression that
the employees to which it referred would only be employed
for a short time because of their union activities. On the
contrary, it appears reasonable to assume that the word
"short-time," in its context, characterized the employees
as having been in the employ of Respondent for a short
time , or possibly it could also be reasonably construed as
meaning temporary employees. In any event, the threat
that General Counsel reads into the use of the word is too
145
thickly veiled and obscure to permit a finding that it was
conveyed to the employees.
It is alleged in the complaint that the letter conveyed the
impression that it was unlawful to distribute union
authorization cards within the plant area including the
lunchroom during nonworking hours. This allegation is
apparently predicated on the last two sentences above
quoted. The thrust of the last sentence appears to be
directed, not at the distribution of authorization cards in
the lunchroom but rather at forcing the cards upon
employees. Therefore, it does not appear appropriate to
conclude that the allegation is sustained . In any event, it
was found hereinabove that the Respondent did unlawfully
maintain and enforce such a rule and the finding that it
indicated such a rule in said letter would only be
cumulative.
It also alleged that the letter violated the Act by
conveying the impression that the "Board would cause an
employer to recognize a union that had obtained a majority
of signed authorization cards from employees, even though
that union might have illegally obtained the authorization
cards." This allegation is apparently predicated on the
following statement contained in the letter:
If the union could coerce and intimidate the majority
of the employees into signing these cards, the
National Labor Relations Board might certify them as
your agent even if you did not have an election.
This appears to be a statement of opinion protected under
Section 8(c) of the Act.24
It is alleged in the complaint that Respondent violated
Section 8(a)(1) of the Act by soliciting employees to
withdraw from the Union through its letter and enclosing
the aforementioned postcards. The letter contained the
following statement:
If you have changed your mind, been misinformed,
coerced, threatened, intimidated into signing an
authorization card OR if you think someone may have
sent in a card with your name on it, you can revoke
that card by mailing the enclosed postcard.
It is my opinion that, while it is not unlawful for an
employer to inform his employees that they may withdraw
their authorization cards if they have changed their minds,
or if they were coerced or intimidated into signing, it is
unlawful for an employer to attempt to assist them in
revoking their cards by furnishing to them, without a
demonstrated need or request therefor, addressed,
stamped postcards which required no more than their
signature to notify the Board of the revocation of their
authorization cards. There is no showing that the
employees required or requested such assistance of the
Respondent. Therefore, it is concluded that Respondent,
by distributing said cards to its employees, violated
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with the
operations of Respondent described in section I, above,
have a close, intimate , and substantial relation to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
24 It is noted that such a result might occur should the issue of
coercion and intimidation not be raised.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that Respondent engaged in
certain unfair labor practices, it will be recommended that
Respondent be ordered to cease and desist from such
unfair labor practices and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminated
against Daniel V. Salcido and Charles P. Callihan by
unlawfully laying them off for approximately 3 workdays
during the period from July 8, 1966, to July 13, 1966, it will
be recommended that Respondent make them whole for
any loss of earnings they may have suffered because of
said discrimination against them by payment to each of a
sum equal to the amount each normally would have earned
as wages during such period.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent interfered with, restrained, and coerced
its employees within the meaning of Section 8(a)(1) of the
Act by the following conduct:
(a) Maintaining and enforcing an unlawfully broad rule
prohibiting solicitation and distribution of literature on
behalf of the Union during nonworking time in nonwork
areas of its plant.
(b) Issuing warning notices to employees for engaging
in protected activities which were proscribed by its said
unlawfully broad rule.25
(c) Threatening employees with economic reprisals for
engaging in protected activities prohibited by said
unlawfully broad rule.
(d) Interrogating employees as to whether they engaged
in, or would continue to engage in, protected activities
prohibited by said unlawfully broad rule.
(e) Posting a notice in the plant setting forth said
unlawfully broad rule.
(f) Unlawfully attempting to assist employees to revoke
their union authorization cards.
2. Respondent violated Section 8(a)(3) and (1) of the Act
by the disciplinary layoffs for approximately 3 days of
Daniel V. Salcido and Charles P. Callihan in reprisal for
their protected activities on behalf of the Union which
were prohibited by the aforesaid unlawfully broad rule,
thereby discouraging membership in the Union.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that Respondent, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing an unlawfully broad rule
prohibiting solicitation and distribution of literature on
25 Although three of the warning notices were withdrawn, as
indicated above said withdrawals did not effectively negate the
coercive impact thereof It was clearly indicated that the
unlawfully broad rule enunciated in the notices was not repealed
by virtue of their withdrawal, thereby coercively indicating that
warning notices would be issued for engaging in protected activity
prohibited by the unlawfully broad rule.
26 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
behalf of the Union during nonworking time in nonwork
areas of its plant.
(b) Issuing warning notices to employees for engaging
in protected activities prohibited by its said unlawfully
broad rule.
(c) Threatening employees with economic reprisals for
engaging in protected activities prohibited by its said
unlawfully broad rule.
(d) Interrogating employees as to whether they had
engaged in, or would continue to engage in, protected
activities prohibited by said unlawfully broad rule.
(e) Posting a notice in its plant setting forth said
unlawfully broad rule.
(f) Unlawfully attempting to assist employees to revoke
their union authorization cards.
(g) Discouraging membership in the Union and exacting
economic reprisals by laying off employees for engaging in
protected activities which were prohibited by its aforesaid
unlawfully broad rule against solicitation and distribution.
(h) In any other like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization, to join, form, or assist labor
organizations, including the Union involved herein, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which it is
deemed will effectuate the policies of the Act:
(a) Make Daniel V. Salcido and Charles P. Callihan
whole for any loss of earnings they may have suffered as a
result of Respondent's discrimination against them as
provided in the section of this Decision entitled "The
Remedy."
(b) Withdraw from personnel files of employees
warning notices or notations of punitive personnel action
for their having engaged in protected activity prohibited by
its unlawfully broad rule against solicitation and
distribution.
(c) 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 all other records
necessary to determine the amount of backpay due under
the terms of this Recommended Order.
(d) Post at its place of business in Banning , California,
copies of the attached notice marked "Appendix."26
Copies of said notice, to be furnished by the Regional
Director for Region 21, after being signed by an authorized
representative of the Respondent, shall, be posted
immediately upon receipt thereof and be maintained by it
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 such notices are
not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith .27
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 "
t' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the
Regional Director for Region 21, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
THE DEUTSCH COMPANY
IT IS FURTHER RECOMMENDED that the complaint be
dimissed insofar as its relates to the unfair labor practices
alleged in the complaint which have not been found to
have been sustained.
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 maintain and enforce an unlawfully
broad rule prohibiting solicitation and distribution of
literature on behalf of United Steelworkers of
America, AFL-CIO, or any other labor organization,
during nonworking time in nonwork areas of our
plant.
WE WILL NOT issue warning notices to employees
for engaging in protected activity prohibited by our
unlawfully broad rule.
WE WILL NOT unlawfully interrogate employees as
to whether they had engaged, or would continue to
engage, in protected activities prohibited by said
unlawfully broad rule.
WE WILL NOT post a notice in the plant setting forth
said unlawfully broad rule.
WE WILL NOT unlawfully attempt to assist
employees to revoke their union authorization cards.
WE WILL NOT discourage membership in United
Steelworkers of America, AFL-CIO, or exact
economic reprisals, by laying off employees for
engaging in protected activity which is prohibited by
our aforesaid unlawfully broad rule against
solicitation and distribution.
WE WILL NOT in any other like or related manner
interfere with, restrain, or coerce our employees in
147
the exercise of the right to self-organization , to join,
form, or assist United Steelworkers of America,
AFL-CIO, or any other labor organizations , to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities.
WE WILL make Daniel V. Salcido and Charles P.
Callihan whole for any loss of earnings they may have
suffered as a result of our discrimination against
them.
WE WILL withdraw from the personnel files of our
employees warning notices and notations of punitive
personnel action for their having engaged in protected
activity prohibited by our unlawfully broad rule
against solicitation and distribution.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of United
Steelworkers of America, AFL-CIO, or any other labor
organization , except to the extent that such right may be
affected by an agreement authorized by Section 8(a)(3) of
the Act.
Dated By
THE DEUTSCH COMPANY,
ELECTRONIC COMPONENTS
DIVISION, A CORPORATION
(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, 849 South
Broadway, Los Angeles, California 90014,
Telephone 688-5204.