The Singer Co.

National Labor Relations Board - Board Decisions

Oct 9, 1975

220 N.L.R.B. 1179 (N.L.R.B. 1975)

THE SINGER COMPANY 1179
The Singer Company and Robert Greenberg, Homera
Loudermilk, and Hurley Woods , and Craig H. Liv-
ingston . Cases 22-CA-6095 and 22-CA-6198
October 9, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND PENELLO
Upon charges duly filed on October 15, and De-
cember 26, 1974, and amended on January 7, 1975,
by individuals Robert Greenberg, Homera Louder-
milk, Hurley Woods, and Craig H. Livingston
against The Singer Company, herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
22, on January 9, 1975, issued and served on the par-
ties an order consolidating Cases 22-CA-6095 and
22-CA-6198 and a consolidated complaint alleging
that Respondent had engaged in unfair labor practic-
es within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charges and of the consoli-
dated complaint and notice of hearing were duly
served on the parties. On January 17, 1975, Respon-
dent filed its answer to the consolidated complaint,
admitting various allegations of the complaint, but
denying the commission of unfair labor practices and
requesting that the consolidated complaint be dis-
missed.
On January 22, 1975, Respondent filed with the
National Labor Relations Board a motion to dismiss
complaint and a memorandum in support thereof.
Respondent submitted that the issues set forth in the
complaint are pending final and binding arbitration
instituted by the Charging Parties under the terms of
an existing labor agreement between Respondent
and the said Charging Parties' certified collective-
bargaining agent, Local 461, International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
and are subject to the Board's deferral policy as set
forth in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971). By order dated
April 21, 1975, the Board denied Respondent's mo-
tion to dismiss the consolidated complaint.
A hearing was held on June 30, 1975, before Ad-
ministrative Law Judge Milton Janus. At that time,
the parties entered into a stipulation in which they
agreed and stipulated to waive the issuance of a deci-
sion and recommended order by an Administrative
Law Judge and to sumbit the case directly to the
Board for findings of fact, conclusions of law, and an
order based on the record as made at the hearing,
including exhibits.
By order dated July 24, 1975, the Board, by its
Associate Executive Secretary, approved the stipula-
tion and made it a part of the record herein and
transferred the case to the Board, granting permis-
sion for the filing of briefs. Thereafter, briefs were
filed by the General Counsel and Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the stipulation, includ-
ing exhibits, and the entire record in this proceeding,
and hereby makes the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the manu-
facture, sale, and distribution of sewing machines
and related products with its principal office and
plant in Elizabeth, New Jersey. During the preceding
12 months, in the course and conduct of its business
operations, Respondent purchased and received
goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of
$50,000 were transported directly to said Elizabeth
plant in interstate commerce from outside the State
of New Jersey. The parties stipulated, and we find,
that Respondent is an employer within the meaning
of Section 2(2) of the Act, and has been, at all times
material herein, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Accord-
ingly, we find that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and we find , that Local 461,
International Union of Electrical , Radio and Ma-
chine Workers, AFL-CIO, herein called Local 461, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue presented is whether Respondent violat-
ed Section 8(a)(1) by maintaining unlawful no-distri-
bution and no-solicitation rules and Section 8(a)(1)
and (3) by suspending Robert Greenberg and Hom-
era Loudermilk for distributing literature in violation
of Respondent's aforementioned no-distribution
rule.
220 NLRB No. 172
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Facts
Since 1947, and at all times material herein, Re-
spondent has maintained in effect and enforced the
following rules governing the conduct of its employ-
ees:
OUTSIDE BUSINESS
There shall be no personal business or outside
business conducted on Company time or Com-
pany property and no one is permitted to post or
distribute on, or within Company property, any
posters, bills, notices, or other printed matter,
except upon authorization of the Company.
SOLICITATION
There shall be no solicitation of any subscrip-
tions of memberships, or collection of dues for
any person or organization on Company time.
Any solicitation on Company property, out-
side of working hours, shall be limited to person-
al conversation conducted in an orderly manner
so as not to create confusion or disturbance.
Employee Homera Loudermilk was suspended from
work from September 25 to October 7, 1974, for dis-
tributing the September 1974 issue of a pamphlet
called "Heard the News" in violation of Re-
spondent's rule pertaining to distribution. She dis-
tributed the literature in a working area during non-
working time. Employee Robert Greenberg was
suspended from October 3 to October 7, 1974, also
for distributing "Heard the News" in violation of the
company rule. He passed out the literature in a work-
ing area during working time.
Editions of "Heard the News" had been distribut-
ed to Singer employees by dissident fellow employees
for several months prior to the September suspen-
sions. Although some of the articles dealt with gener-
al social commentary regarding alleged U.S. imperi-
alism and the exploitation of workers throughout the
world, the publications dealt primarily with such is-
sues concerning the Singer Company as layoffs, sub-
contracting, substandard health and safety condi-
tions, and the lack of adequate union representation
by Local 461 regarding these complaints. Specifical-
ly, the September issue states that the publishers are
not against the Union, but rather that their "fight" is
against the Company and inadequate union repre-
sentation concerning working conditions. It calls for
the election of union stewards who will fight to reme-
dy alleged problems at the Company.
C. Contentions of the Parties
The General Counsel alleges that Respondent
maintained and enforced invalid no -distribution and
no-solicitation rules in violation of Section 8(a)(1) of
the Act and suspended Loudermilk and Greenberg
in violation of Section 8(a)(1) and (3). Respondent
denies the above allegations and further contends
that the distribution of "Heard the News" by Loud-
ermilk and Greenberg was not protected activity.
D. Conclusions
Section 7 of the Act provides in part that employ-
ees shall have the right to engage in concerted activi-
ties for the purpose of mutual aid or protection. The
distribution of "Heard the News" was a concerted
activity by certain employees of Singer. A reading of
the several editions of this publication clearly estab-
lishes that these employees were protesting what they
considered to be poor working conditions as well as
inadequate union representation regarding their
grievances. The fact that some of the articles in the
distributions contained gratuitous remarks or "social
comment" matter deemed objectionable by some
parties does not detract from the conclusion that the
distribution of "Heard the News" was a concerted
activity for the purpose of seeking improvements in
the conditions of employment.' This publication
sought the destruction of neither the Company nor
the Union. Rather, it sought to spur the Union to
more effective representation. As in Samsonite Cor-
poration, supra, it did so in a lawful and peaceful
manner through the presentation of ideas. Accord-
ingly, we find that the distribution of "Heard the
News" was an activity protected by Section 7 of the
Act.
At the time of the suspensions of Loudermilk and
Greenberg, the no-distribution rule maintained and
enforced by Respondent,' not being confined to
working time in working and nonworking areas or
nonworking time in working areas, and the no-solici-
tation rule maintained by Respondent, not being
confined to working time, were presumptively invalid
on their face.' These rules had been promulgated in
i See Samsonite Corporation, 206 NLRB 343, 346 (1973).
2 On January 10, 1975, several months after the suspensions , Respondent
notified all employees that the following should be added to their company
rule books as a clarification to the "Outside Business" and "Solicitation"
rules:
Since employees have the right to self-organization, to form, join or
assist labor organizations and to engage in other concerted activities for
their mutual aid and protection , and shall also have the right to refrain
from any and all such activities , any employee may in expressing such
right:
1. DISTRIBUTE LITERATURE IN NONWORKING AREAS OF
THE PLANT DURING NONWORKING TIME:
2 ENGAGE IN SOLICITATION DURING NONWORKING
TIME IN ANY PLANT AREA.
3 Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962); Also see Yel-
low Cab, Inc., 210 NLRB 568 (1974).
THE SINGER COMPANY
1947, far beyond the 10(b) period, but they had been
maintained at least until January 10, 1975, when the
revisions set forth hereinabove were announced.4 Ac-
cordingly, we find that the maintenance of the no-
distribution rule and the no-solicitation rule violates
Section 8(a)(1) of the Act.5
Respondent also violated Section 8(a)(1) of the act
by suspending Loudermilk and Greenberg pursuant
to its efforts to enforce the unlawful no -distribution
rule .6 Even though Loudermilk distributed the pam-
phlets in a working area during breaktime and
Greenberg distributed the literature in a working
area during working time , an unlawful rule can pro-
vide no justification for the suspension of employees
who violate it. Therefore, if an employee is suspend-
ed for distributing literature in violation of an unlaw-
ful rule, the suspension is also unlawful unless the
employer can establish that the distribution inter-
fered with the employee's own work or that of other
employees, and that this rather than the violation of
the rule was the reason for the suspension.' No such
interference has been shown here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above , have a close, inti-
mate , 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.
Upon the basis of the foregoing findings of fact,
and upon the entire record in this case, we make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 461 is a labor organization within the
4 See in . 2, supra.
3 Member Fanning disagrees with this finding only insofar as it may be
read to permit restrictions on the distribution of literature in working areas
when work is not being performed in such areas . See his dissenting opinion
in Stoddard-Quirk Manufacturing Co., supra.
6 Although the complaint alleges that the suspensions were also violative
of Sec. 8(a)(3) of the Act, the evidence establishes that the suspensions were
keyed to Loudermilk's and Greenberg's concerted activities under Sec 7 of
the Act rather than to the encouragement or discouragement of membership
in a labor organization under Sec . 8(a)(3) of the Act. Accordingly, we dis-
miss the allegation in the complaint that Loudermilk and Greenberg were
supended in violation of Sec . 8(a)(3) of the Act.
See, e .g., Daylin Inc., Discount Division d/b/a Miller's Discount Dept
Stores, 198 NLRB 281 (1972); Yellow Cab, Inc., supra
1181
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing a rule which
prohibits employees from distributing literature on
nonworking time in nonworking areas, where such
distribution is protected by Section 7 of the Act, Re-
spondent has violated Section 8(a)(1) of the Act.
4. By maintaining a rule which prohibits employ-
ees from soliciting on nonworking time, where such
solicitation is protected by Section 7 of the Act, Re-
spondent has violated Section 8(a)(1) of the Act.
5. By suspending Homera Loudermilk and Robert
Greenberg pursuant to Respondent's unlawful no-
distribution rule, Respondent has violated Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist therefrom. Having found that Respondent
violated Section 8(a)(1) of the Act by suspending em-
ployees Homera Loudermilk and Robert Greenberg
pursuant to an unlawful no-distribution rule, we shall
order that Respondent make these employees whole
for any loss of earnings they may have suffered as a
result of the unlawful action against them, by pay-
ment to them of a sum of money equal to what each
of them would normally have earned as wages from
the date of his or her suspension to the date Respon-
dent reemployed him or her, less net earnings during
such period with backpay and interest thereon to be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Singer Company, Elizabeth, New Jersey, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining or enforcing any rule that prohib-
its employees from distributing literature in non-
working areas on nonworking time, where such dis-
tribution is protected by Section 7 of the Act.
(b) Maintaining any rule that prohibits employees
from soliciting on nonworking time, where such so-
licitation is protected by Section 7 of the Act.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Suspending or otherwise discriminating against
any employee pursuant to an unlawful no-distribu-
tion rule.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Make whole Homera Loudermilk and Robert
Greenberg for any loss of earnings each of them may
have suffered by reason of the unlawful action
against them in the manner set forth in the section in
this Decision entitled "The Remedy."
(b) Post at its place of business in Elizabeth, New
Jersey, copies of the attached notice marked "Appen-
dix." 8 Copies of said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
$ In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifi-
cally found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or enforce any rule
that prohibits employees from distributing liter-
ature in nonworking areas on nonworking time,
where such distribution is protected by Section 7
of the National Labor Relations Act, as amend-
ed.
WE WILL NOT maintain any rule that prohibits
employees from soliciting on nonworking time,
where such solicitation is protected by Section 7
of the Act.
WE WILL NOT suspend or otherwise discrimi-
nate against any employee pursuant to an un-
lawful no-distribution rule.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Section
7 of the Act.
WE WILL make Homera Loudermilk and Rob-
ert Greenberg whole, with interest, for any loss
of earnings they have suffered as a result of our
unlawful action against them in suspending
them pursuant to our unlawful no-distribution
rule.
THE SINGER COMPANY