Timken Co.

National Labor Relations Board - Board Decisions

Jul 13, 2000

331 N.L.R.B. 744 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
The Timken Company and The United Steelworkers
of America, AFL–CIO, CLC. Cases 8–CA–
28174, 8–CA–28181, 8–CA–28202, 8–CA–
28252, 8–CA–28262, 8–CA–28299, 8–CA–
28308, 8–CA–28321, and 8–CA–28353
July 13, 2000
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On March 10, 1997, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Union filed answering
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.

1 The Respondent excepted only to those findings and conclusions
concerning the Respondent’s access rules and related surveillance, and
to certain credibility findings. Thus, the Respondent did not except to
the findings that it violated Sec. 8(a)(1) by prohibiting employees
from discussing the Union among themselves while working and by
threatening an employee with discipline for observing handbilling
from his work area.
The judge dismissed allegations concerning the battery of a union
supporter by a manager; disparate enforcement of no-solicitation/no-
distribution and bulletin board rules; the disciplinary counseling of
two employees for harassing another employee who withdrew her
authorization card; and the issuance of company parking violation
notices to a union supporter. The General Counsel did not except to
these findings.
2 The Respondent has excepted to the judge’s credibility resolu-
tions. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We find it unnecessary to rely on the judge’s discussion of Lech-
mere, Inc., 502 U.S. 527 (1992). That case involved the rights of
nonemployees to access to an employer’s property, not the rights of
employees, as here.
Member Hurtgen agrees with the judge that Respondent’s photo-
graphing violated Sec. 8(a)(1). Member Hurtgen dissented in Randell
Warehouse of Arizona, 328 NLRB 1034 (1999), and would have found
the union’s photographing there to be objectionable. He also ex-
pressed the view that allegedly objectionable photographing by em-
ployers and by unions is to be adjudged under the same standard.
Under that standard, the photographing there was objectionable in
Member Hurtgen’s view. However, the instant case is an 8(a)(1) case.
In Randell, Member Hurtgen did not pass on the issue concerning the
circumstances under which employer photographing violates Sec.
8(a)(1) and whether this issue is to be adjudged under the same stan-
dard as union photographing under Sec. 8(b)(1)(A). In this regard, he
noted the narrower breadth of 8(b)(1)(A)’s language. Member Hurt-
gen agrees that the instant employer photographing falls within the
broad language of Sec. 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that The Timken Company, Bucyrus, Ohio, it
officers, agents, successors, and assigns, shall take the
action set forth in the Order.

MEMBER BRAME, concurring.
I write separately solely concerning the finding that
the Respondent violated Section 8(a)(1) of the Act by
photographing and videotaping employees’ protected,
concerted activities.1 I agree that the Respondent vio-
lated the Act in this instance, but only for reasons
stated below.
Section 8(a)(1) of the Act forbids employers from
“interfer[ing] with, restrain[ing], or coerc[ing] employ-
ees in the exercise of the rights guaranteed in section
7.” Section 7 in turn confers upon employees “the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection,” as well as
the right to refrain from such activities.
In my concurring opinion in Randell Warehouse of
Arizona, 328 NLRB 1034 (1999), I concluded allegations
that photographing or videotaping, by an employer or a
union, whether in an unfair labor practice or election
objections context, should be judged under “all the cir-
cumstances.” The ultimate test is “whether the conduct,
in the circumstances, may reasonably tend to instill in the
minds of the employees photographed a fear of economic
or physical reprisal.” Id. slip op. at 1048. To aid in this
fact-specific analysis, I suggested a flexible five-part test:

(1) Whether the photographing occurred in the
context of serious independent unfair labor practice
1 I agree with my colleagues that the Respondent violated Sec.
8(a)(1) by summoning police in response to protected handbilling
activity, by promulgating and disparately enforcing rules limiting the
access of off-duty employees engaged in protected concerted activity,
at exterior locations near its plant, including highway entrances and
pedestrian turnstile entrances.
No exceptions were filed to the judge’s findings that the Respon-
dent also violated Sec. 8(a)(1) by promulgating a rule forbidding em-
ployees’ presence at plant turnstile entrances more than half an hour
before the start or after the end of their shift; by counseling employees
for talking about the Union while working, and by threatening an
employee with discipline for viewing employees engaged in protected,
concerted activity.
Also no exceptions were filed to the judge’s dismissal of allega-
tions that the Respondent further committed violations of Sec. 8(a)(1)
by issuing a written warning and “parking ticket” to an employee; by
disparately enforcing rules regarding bulletin board postings and so-
licitation and distribution; by confiscating union literature; by counsel-
ing union supporters for harassing a fellow employee who withdrew
her authorization card; and by assaulting an employee.
I also agree with my colleagues that the Respondent violated Sec.
8(a)(3) and (1) by adversely counseling, warning, and suspending
employees for violating unlawful access rules.
331 NLRB No. 86
TIMKEN CO. 745
conduct or unalleged threats of physical or economic
reprisal, intimidation, or actual violence.
(2) Whether the activity photographed was car-
ried on in an open and public way, including
whether the activity involved trespass.
(3) Whether the photographing took place at the
employer’s premises, at the union hall or a union-
sponsored event, or at a location unconnected with
either party.
(4) Whether the photographing was done in a
“conspicuous” manner that would suggest it was in-
tended as a prelude to reprisal.
(5) Whether the party photographing the activity
had a “legitimate” or “proper” justification as previ-
ously recognized by the Board.

Id. at 1047–1048 (footnotes omitted). I also emphasized
in Randell that, as with similar standards applied to ascer-
tain the legality of employee interrogations, these criteria
“are not prerequisites to a finding of [unlawful conduct],
but rather useful indicia that serve as a starting point for
assessing the totality of the circumstance.” Id. at. 1048,
quoting Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835
(1998) (internal quotation marks omitted), quoting in turn
Timsco, Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C. Cir.
1987).
Here, there is no dispute that, by distributing prounion
handbills outside the plant to fellow workers during an
organizational campaign, employees engaged in conduct
sheltered by Section 7. The question is whether the Re-
spondent’s photographing and videotaping of the handbill-
ing constituted interference, restraint, or coercion within
the scope of Section 8(a)(1).
On April 4, 1996, in the midst of a union organizational
campaign, and continuously thereafter, the Respondent
videotaped and/or photographed employees passing out
union literature at the east turnstile entrance to its plant.
The parties agreed that the photographing occurred when-
ever more than two employees were at the east turnstile
distributing union handbills or standing with those who
did.
Respondent’s asserted reason for the picture taking
stemmed from an incident the previous evening, in which
an employee, Ron Grandstaff, alleged that Respondent’s
human resources manager, Robert Arbogast, had as-
saulted him at the east turnstile. Grandstaff first filed,
then withdrew, a criminal complaint against Arbogast.
My colleagues and I agree with the judge’s dismissal of
an allegation that Respondent violated Section 8(a)(1)
based on this conduct. The Respondent claims its motiva-
tion for the photographing was to protect Arbogast and its
security personnel from unfounded charges, as well as to
have a record for any subsequent litigation. The photo-
graphing, however, was not limited to periods of time
when Arbogast or security personnel were present at the
east turnstile.
In its brief, the Respondent points out that “photo-
graphs were only taken where the two-person limita-
tion was ignored.” My colleagues and I have, how-
ever, found this restriction imposed on employee ac-
cess at the turnstiles unlawful.
Applying the Randell factors outlined above, I am
compelled to join in my colleagues’ finding of a viola-
tion.
Regarding the first, we have found that Respondent
committed other significant unfair labor practices. Most
pertinent is the restriction against more than two employ-
ees congregating at turnstile entrances. Respondent admits
that employee violation of this unlawful rule triggered
photographing at the east turnstile, notwithstanding the
presence or absence of Arbogast or security personnel.
Respondent has filed no exception to the judge’s finding
that Respondent illegally promulgated a rule banning the
presence of employees at plant turnstile entrances more
than half an hour before the start or end of their shift. Re-
spondent also unlawfully forbade distribution of literature
at highway entrances to the plant except in designated
areas. Other violations of Section 8(a)(1) included sum-
moning police to enforce the latter rule, counseling em-
ployees for talking about the Union while at work, and
threatening an employee with discipline for watching pro-
tected concerted activity.
In addition to the promulgation of unlawful access rules,
the Respondent, we have found, violated Section 8(a)(3)
and (1) by counseling, warning, and/or suspending 44 em-
ployees for violating those same rules.
Thus, the judge’s finding that “the pervasive photo-
graphing and videotaping unlawfully complemented the
invalid access limitations and their unlawful enforcement”
is sound. The weight of this factor in the particular cir-
cumstances here is decisive. Where employees are being
disciplined for violating unlawful rules, and photographing
occurs that may be used to document such infractions, it is
inevitable that “the conduct, in the circumstances, may
reasonably tend to instill in the minds of the employees
photographed a fear of . . . reprisal.”2
Factors two and three are unavailing because of the cir-
cumstances described. That the handbilling activity pho-
tographed took place openly and at the employer’s prem-
ises would, in my view, have strongly militated against
finding the violation had not the employer committed the
particular unfair labor practices noted, especially promul-
gating and enforcing unlawful access rules.3 There is no
evidence whether the photographing was “conspicuous,”
factor four, but its absence cannot aid the Respondent
here; evidence of its presence would merely aggravate the
coercive nature of the conduct.4

2 Randell Warehouse, supra, at 1048 (Member Brame concurring).
3 Supra at1047 fns. 76 and 77 in my Randell Warehouse concurrence.
4 Id. at fn. 78.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
The Respondent cannot find support in the fifth fac-
tor, because its justification, to protect Arbogast and its
security agents, is too severely undercut by the con-
tinuous nature of the photographing—going beyond
times when company personnel were present—and by
the fact picture-taking commenced upon an indication
that an unlawful rule had been transgressed.
Accordingly, I am satisfied that the Respondent’s
photographing and videotaping infringed on the em-
ployees Section 7 rights under the Act and ran afoul of
Section 8(a)(1).

Nancy Recko, Esq., for the General Counsel.
James K. Brooker, James R. Blake, and Robert J. McBride,
Esqs. (Day, Ketterer, Wright & Rybolt, Ltd.), of Canton,
Ohio, for the Respondent.
Mark A. Rock and Ann Knuth, Esqs. (Schwarzwald & Rock),
of Cleveland, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The
original consolidated complaint was issued by the Regional
Director for Region 8 against the Timken Company (the
Respondent), on June 13, 1996, in all the above-captioned
cases except for Case 8–CA–26353. A second order con-
solidating cases, complaint, and notice of hearing was issued
on July 19, 1996, in Case 8–CA–28353. An amendment to
complaint was issued on August 14, 1996. The complaints
were issued pursuant to unfair labor practice charges filed by
United Steelworkers of America, AFL–CIO, CLC (the Union
or the Charging Party). The consolidated complaints, as
amended, will be referred to hereinafter as the complaint.
The complaint alleges violations of Section 8(a)(1) and (3) of
the Act that allegedly occurred on various dates from Febru-
ary 23 through June 20, 1996, during the Union’s futile or-
ganizing campaign at Respondent’s Bucyrus, Ohio plant
facilities. The Respondent is alleged to have unlawfully
interfered with employees’ union literature distribution and
handbilling and union solicitation by restricting employee
union handbillers’ access to a certain location at the public
highway entrance to the facilities’ parking lots; by limiting
the distribution of union leaflets at the pedestrian turnstile
fence entrances to the interior plant facilities located beyond
the parking lot; and by initially placing, although subse-
quently abandoning, a limitation of access to or presence at
the plant turnstile entrances to employees who were sched-
uled to start work no longer than 30 minutes or whose work
shift ended not more than 30 minutes before such ingress or
presence. The alleged interference with employees’ statutory
rights took the form of unlawful surveillance by camera, “coun-
seling” (which Respondent argues does not constitute disci-
pline), warnings, parking tickets, police enforcement, and sus-
pensions to certain employees who refused Respondent’s orders
to leave designated areas in compliance with the above restric-
tions, which employee refusal was and is characterized by Re-
spondent as insubordination. It is also alleged that Respon-
dent’s manager perpetrated an assault and battery upon one
employee who refused an order to comply with an unlawful
restriction on his attempt to engage in unprotected activity at
one turnstile entrance.
In argument and in proofs, the parties recognized the fore-
going allegations to constitute the most significant issues.
The complaint also alleges that certain employees were
disciplined with counseling for discussing the Union in vio-
lation of a no-solicitation rule in Respondent’s employee
handbook which the General Counsel argues was disparately
enforced.
The complaint further alleges as unlawfully discrimina-
tory, the disparate enforcement of the employee handbook
rule regarding bulletin board postings by similar disciplinary
warnings to certain employees. Related issues are Respon-
dent’s enforced limitations upon the placement and its con-
fiscation of open, face up, union literature in working areas,
employee personal property, open-faced storage racks known
as “cubbyholes,” and from the tops of certain employee’s
toolboxes in working areas.
Finally, the complaint also alleges that Respondent unlaw-
fully disciplined an employee with a verbal warning because
he had, during the performance of his work duties, stopped to
look out of a nearby open overhead door opening to view the
union employee leafleting at one of the fence entrance turn-
stiles.1
Respondent’s timely filed answers and position at trial
admitted much of the allegations but denied the commission
of unfair labor practices. In essence, Respondent takes the
position that it was exercising its lawful right to control the
use of its property and to maintain discipline and safety on
its premises and at entrances to its premises by placing rea-
sonable limitations upon the numbers of employees engaged
in leafleting at the turnstile entrances and those nonleafleting
employees who, in support of the leafleters, stood with them,
and by limiting the area where they leafleted at the highway
entrance to its parking lot. Respondent argues that it did not
prohibit access because, despite the limitations, effective
leafleting did occur near those areas as well as in the plant
cafeteria and locker rooms, and, in effect, by employees who
were permitted to and did wear union insignia on their cloth-
ing in the plant during working time. Respondent denies the
alleged assault and battery. It admits the photographing and
videotaping of employee leafleting at the turnstile entrances
on a daily basis after the alleged assault and battery, but
claims that it was done for the purpose of protecting its man-
agers and security guards from subsequent false claims of
assault and battery.
Respondent denies that its preexisting no-solicita
tion/distribution rules and its restrictive bulletin board rules
were disparately or discriminatorily enforced. Respondent
claims that its personnel actions were based on insubordinate
refusal by employees to obey the requests of its manager and
agents to remove themselves from the area because they
were in excess of the number permitted at the turnstile, or

1 The complaint (GC Exh. 1(s)) was amended at hearing in the fol-
lowing respects: par. 5 at p. 3, the name Larry Morton was amended
to read “Larry Young” and the name of Paul Frankenhouser was de-
leted; par. 6 at p. 3 was withdrawn; par. 7 at p. 3 was withdrawn; par.
33(A) at p. 7 was amended to read “. . . in violation of the rule de-
scribed above in pars. 9 and/or 12”; par. 35(A) at p. 8 was amended to
read “. . . in violation of the rule described above in pars. 9 and/or
12”; par. 39(A) at p. 9 was amended to omit reference to the “five day
disciplinary suspension”; and par. 40 at p. 9 was amended to include
the following employee names and suspensions: Robert Berry, 5 days
and Nancy Seybert, 5 days.
TIMKEN CO. 747
south of an area designated by it at the northern highway
entrance.
Respondent contends that personal actions and confisca-
tion of employee union literature were justified as a conse-
quence of violations of its lawful preexisting no-
solicitation/distribution and posting rules, and as a conse-
quence of other employee complaints of harassment by em-
ployee union solicitors and/or leaflet distributors.
The complaint was litigated before me at trial held in Bu-
cyrus, Ohio, on September 11, 12, 13, and 14, 1996. The
parties were given full opportunity to and did adduce
documentary, photographic, schematic, stipulated, and
testimonial evidence of 55 witnesses of whom 45 were
summoned by the General Counsel. In a 4-day litigation, the
parties, by virtue of cooperation and highly professional
behavior, were able to compile a testimonial record of over
1000 pages. Briefs were received by the judges division no
later than November 19, 1996.
The briefs submitted by the parties fully delineate the facts
and issues and, in form, approximate proposed findings of
fact and conclusions. Portions of those briefs have been
incorporated herein, sometimes modified, particularly as to
undisputed factual narration. However, all factual findings
herein are based upon my independent evaluation of the re-
cord. Based upon the entire record, the briefs and my obser-
vation and evaluation of witnesses’ demeanor, I make the
following findings
I. BUSINESS OF RESPONDENT
At all material times, Respondent, an Ohio corporation,
with an office and place of business in Bucyrus, Ohio (Re-
spondent’s Bucyrus facility), has been engaged in the manu-
facture and distribution of tapered roller bearings, tube, and
special alloy steels, including bars. Annually, Respondent,
in conducting its business operations sells and ships from its
Bucyrus, Ohio facility goods valued in excess of $50,000
directly to points outside the State of Ohio.
It is admitted, and I find, that at all material times, Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that at all material times, the Un-
ion has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, an international corporation, conducts busi-
ness in 25 countries on 7 continents and employs 17,000
people. Some of the Company’s plants are unionized and in
the United States, the unionized employees are represented
by the Charging Party.
The bearing plant heat treat division and distribution cen-
ter at Bucyrus employs approximately 850 hourly employees
and is not unionized. The United Auto Workers and the
Charging Party Union have conducted multiple organizing
campaigns at Bucyrus during the 1970s, 1980s, and 1990s.
Prior to the current campaign, the most recent union cam-
paign and Board-conducted election took place in 1993.
A 60-foot-wide, east-west-county highway designated as
Route 330 constitutes the northern border of the Bucyrus
facility property line. There are two entrances, a west en-
trance and an east entrance, to Respondent’s property from
Route 330. Respondent maintains a large parking lot utilized
by members of management, employees working in the bear-
ing plant, and visitors to the facility. Employees working in
the distribution center park in a separate parking lot south of
the bearing plant and adjacent to the distribution center. The
distribution center is located approximately one-half mile
south of the bearing plant. A security fence encloses all
manufacturing and warehouse operations.
Respondent limits access to its property to people who
have business with it and its employees. However, employ-
ees’ family members are permitted on the property for brief
periods of time and tow trucks and mechanics are permitted
in the parking lot to deal with disabled vehicles, and a Red
Wing Shoe truck has periodically appeared just north of the
turnstile entrance to solicit sales.
After entering Respondent’s property through the west or
east driveway entrances, employees of the bearing plant park
in the parking lot between Route 330 and the encircling
fence. Two turnstile entrances provide access through the
chain link fence which separates the bearing plant from the
parking lot. The turnstiles are over 6 feet in height and have
multiple tines. Hourly employees are free to enter through
either the east or west turnstile, but the vast majority utilize
the east turnstile which is closer to production areas. Each
employee is provided a personal magnetic bar-coded identi-
fication card which is passed or swiped through a scanner
attached to the locked turnstile assembly. After the card
registers in the computerized time and attendance system, the
identity of the employee is registered, the turnstile spins and
thereby allows the person activating the turnstile to enter
through the fence. After the employee enters, the turnstile is
again locked. Each specific work area has its own scanner
which must be swiped when the employee arrives there.
For payroll purposes, that work area swipe recordation is
utilized by the payroll department to commence computation
of the employees’ shift hours.
The east turnstile is covered by an orange canopy sup-
ported by several metal poles. Immediately to either side of
the turnstile are a garbage container and a recycling con-
tainer. The scanner which reads cards to permit access to the
turnstile is to the west of the turnstile. Large yellow poles
surround the east and west sides of the turnstile. The physi-
cal layout of the turnstile made it impossible for an employee
handing out union literature to stand directly next to an em-
ployee situated within the turnstile itself. To the east of this
turnstile is a bicycle rack. The guardhouse is approximately
176 feet west of the east turnstile and parallel to it. There
are several parking spaces between the east turnstile and the
guardhouse designated for the use of visitors, plant vehicles,
and the handicapped. On occasion, there are large recycling
bins placed in those parking lots.
The guardhouse itself is a single-story, slab foundation,
flat roofed brick structure, elevated only slightly above
ground level. It is located at the western edge of Respon-
dent’s property. Immediately west of it is the 25-foot-wide
main entrance road which runs directly north to Route 330.
The east wall of the guardhouse has one door and two win-
dows. Contiguous to its east wall is the path to the west
turnstile beyond which is the plant office area. The east-west
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
fence ends at a point somewhat south of the guardhouse’s
midsection.
The west turnstile is south of the fence. The view from
the guardhouse’s east windows is immediately partially ob-
structed by a structure that resembles a typical clear, plexi-
glass walled transit bus stop. The so-called bus stop serves
as a place for employees to gather and wait, either before
their shift or afterward, for rides to their homes. There have
been no restrictions ever put on the number of employees
who may stay within that bus stop. It is about 10-feet long
and its length parallels the fence so that several bodies of
persons therein would significantly block the east view of the
guardhouse, as would any cars parked in the 12 spaces along
and north of the fence between the bus stop and the east turn-
stile. The view is also partially obstructed by recycling bins
periodically placed in the parking area. I agree with the
General Counsel that at best only the upper third of the east
turnstile is clearly visible to the guards in the guardhouse for
any practical purpose for any significant period of time.
Prior to the installation of the turnstiles in 1994, employ-
ees gathered outside a chain link fence gate until it was
unlocked one-half hour before the start of a shift. A security
shanty was located directly next to the gate and a security
guard, either in the shanty or beside it, would observe em-
ployees entering the facility after the gate was unlocked.
Employees would show their badge to the security guard
when entering through the opened gate. The present turnstile
system has replaced the badge system. The security shanty
was replaced by the guardhouse. No security guard is lo-
cated at the east turnstile.
According to the testimony of Robert Arbogast, Respon-
dent’s human resources manager, the Bucyrus facility man-
agement first heard rumors of the Union’s organizing efforts
in late 1995. In February 1996, union supporters began to
congregate at the driveway entrances to the Respondent’s
facility. On March 28, 1993, employees in support of the
Union began to pass out handbills at the east turnstile en-
trance to the plant.
Prior to the onset of the current union organizing cam-
paign, Respondent maintained a handbook which contains
rules of employee conduct. The handbook has a series of
general rules, the violation of which can lead to discipline,
up to and including discharge, including the following:

Distributing literature of any kind in work areas at
any time. Associates cannot solicit for any purpose or
collect money for any purpose whatsoever or distribute
literature of any kind on working time.
. . . .
Entering or leaving the premises without authoriza-
tion.

There is no rule in the handbook which restricted employee
access to the Respondent’s plant or parking lot more than
one-half hour before or after their shift. There is no rule in
the handbook which forbids more than two employees from
standing at the turnstile entrances or, for that matter, any
place outside the plant. There is no rule in the handbook
which requires that employees who wish to distribute litera-
ture at Respondent’s driveway entrances must stand only at
designated areas.
B. Limited Access and Related Issues
1. Facts
a. Nonobjectionable handbilling
With respect to leafleting, Respondent did not object to
the distribution and placement of union literature in its cafe-
teria or in the locker rooms. At the distribution center, it
actually accommodated the employee handbillers. The dis-
tribution center, located approximately one-half mile south
of the bearing plant, is a busy operation with numerous
trucks arriving and departing. Due to safety concerns be-
cause of the truck traffic, limited parking, and a limited secu-
rity force, the Respondent limits access to the distribution
center. Respondent, nonetheless, has assisted union hand-
billers who wished to leaflet at the distribution center. When
employees expressed a desire to handbill at the distribution
center, the Respondent transported them there in a company
vehicle, dropped them off, and then picked them up at a time
designated by the handbilling employees.
b. Route 330 handbilling
Since February 1996, handbillers frequently gathered in
the areas around the east and west driveway entrances on
Thursdays. The Respondent has not attempted to impose
limitations on the number of people that may gather on its
property north of the stop signs at each entrance way. The
Respondent has permitted union organizers employed by the
Union and other nonemployees to gather and handbill near
the entrances north of the stop signs. At times, as many as
55 people have gathered near the entrance ways.
The stop sign at the west entrance is 33 feet south of the
property line contiguous to Route 330. The stop sign at the
20-foot wide east entrance is only 5 feet from the property
line. The entire area between the highway and parking lot is
flat, grassy ground with a slight depression for rain drainage.
About 35 feet south of the west stop sign is the entrance to
the first row of the paved employee parking lot. West of the
main entrance driveway, between that road and a fenced-in
neighboring retail complex, is a row of large evergreen trees.
At the intersection of the main entrance road and Route 330,
there is an overhead suspended traffic light signal that is
cycled to activate at the 3–3:30 p.m. shift breaktime to facili-
tate employee egress.
Arbogast testified that on unspecified dates, probably in
early April 1996, he perceived a potential safety problem to
exist at the west entrance by virtue of group employee hand-
billing south of the stop sign. He explained that in excess of
125 trucks, including large tractor-trailers must negotiate a
sharp turn south and some employee vehicles, after turning
south onto the main entrance road, must, in about 65 feet,
turn east onto a parking lot lane. Arbogast testified that em-
ployee handbillers positioned themselves in the center of the
main entrance road lined up with the overhead suspended
traffic signal light and attempted to distribute handbills to
incoming traffic. He testified that he concluded that this
caused no safety problem if they remained north of the stop
sign even though that would have forced the handbillers
closer to Route 330, and that he so ordered them to do so.
Arbogast testified that on April 11, many times he ordered
employee handbillers to move north of the stop sign, i.e.,
closer to Route 330. Employees Ralph Hart and Nancy Sey-
bert refused his order and remained south of the stop sign
without vocally responding to him or even acknowledging
TIMKEN CO. 749
his presence. Another employee who was with them com-
plied with his order.
On the evening of April 11, Arbogast summoned a deputy
sheriff who appeared and who unsuccessfully attempted to
persuade Hart and Seybert to move northward. Arbogast
testified that his instruction to the sheriff was to make sure
that “the area” stayed open. There is no clear, coherent evi-
dence of any blocking of incoming or outgoing traffic. Nor
are Arbogast’s safety concerns apparent inasmuch as his
orders would appear to move handbillers closer to highway
traffic. Nor is it clear that incoming or outgoing employee
vehicles were actually impeded in making any turns. Indeed,
only those using the first parking row would have had to turn
immediately. There are four rows of employee parking.
However, there is no showing that leafleting was in any way
impeded by employees who chose to comply with Arbogast’s
order, and apparently many did so. Seybert and Hart were
subjected to Respondent’s counseling, i.e., they were subse-
quently interviewed by Arbogast, told they had been insub-
ordinate and they were warned of future discipline. A
memorandum under the counseling procedure was placed in
the departmental file in the office of the manager of the area
of the plant where the employees worked. No memorandum,
under this procedure, is placed in the employee’s personnel
file in the human resources department. Despite the fact that
Respondent and many employees do not characterize “coun-
seling” as “discipline” per se, some employees do and indeed
were told they were disciplined when they were counseled.2
Although counseling is used in situations of employee good
performance recognition and as a tool for educating employ-
ees as to plant policy, a counseling memorialization of im-
proper conduct clearly constitutes an adverse personnel ac-
tion regardless of what it is called. This is so because, as
was conceded by Respondent witnesses’ testimony, the
memorialization may be relied upon by the manager in future
situations where that manager may decide upon a more se-
vere course of action because of the past history memorial-
ized in that counseling record.
c. The half-hour-access rule
On the afternoon of April 4, Arbogast and/or his security
guards approached a group of employees who were either
handing out union leaflets or who were assisting and sup-
porting that effort. He and his agents told them that they
were in violation of a company rule which precluded their
presence there at a time more than a half-hour before or after
their shift start or shift end. Those employees were in fact
off duty by more than a half-hour. They refused to obey the
order to leave Respondent’s property. On April 4, 1996,
employees Glen Crum, Louis Niedermier, Larry Beck, Ralph
Hart, Roger Eldridge, Ron Grandstaff, and Bob Berry were
counseled by Arbogast in a manager’s office at the plant.
They were informed that on April 3 they had been
“unauthorized to be on company property.” Their
memorialized counseling memorandum further reflected that
they had violated a longstanding policy that precluded their
presence “on the premises 30 minutes before or after the
shift.” They were further told and it was memorialized that
they had been insubordinate by refusing to comply with the
rule and obey a direct order to leave. It was related therein,
as was in virtually all counseling herein, that “any further
2 One supervisor referred to it as “discipline” in his testimony.
ally all counseling herein, that “any further violations will be
subject to disciplinary action up to and including discharge.”
Arbogast testified that such a rule had long preexisted the
1995 union effort. However, he himself was newly em-
ployed at the plant in the spring of 1995 and of little compe-
tency to testify as to past policy and practice. Evidence of
the so-called half-hour rule’s preexistence as expressed in
employee notices in 1990 and 1994 clearly refers to access to
the plant building and not presence in the parking lots or at
the turnstiles. Arbogast testified that he was unaware of any
problems regarding employee congregations before 1996, but
again he did not specifically monitor the parking lot and
fence areas.
Four employees, one of 27 years’ seniority, testified
credibly and without contradiction to the lack of enforcement
of such rule as to locker room gatherings of off-duty em-
ployees in the presence of supervisors; the daily practice of
five to six employees gathering 1 hour before shift start in or
near the bus stop who, upon arrival of the entire group, pro-
ceeded to the cafeteria for coffee; gatherings of up to six off-
duty employees at the west turnstile waiting for the next
shift; and finally, according to a former security guard from
1970 to 1988 and now production employee, gatherings of 40
to 50 employees at the gate entrance 45 minutes or more
before shift start who were not told to disperse.
Arbogast gave no coherent explanation for the enforce-
ment of a rule not previously addressed to nor applied to
outside-the-plant building presence, and which in effect con-
stituted a new rule never before in its present form an-
nounced to any employee prior to the 1995–1996 union cam-
paign. After consultation with legal counsel, Respondent
ceased enforcement of the half-hour rule after April 4. How-
ever, the counseling memoranda remain, and there has been
no announcement to employees rescinding the rule.
d. The two-person limitation
Respondent argues that it has not permitted employees to
congregate en masse outside the turnstiles at any time since
their installation and that prior to the current union cam-
paign, there has been no occasion to test that “policy” be-
cause there had been no occasion for employee congregation
at the turnstiles since their installation. The argument is
premised upon some very limited remarks by Arbogast in
cross-examination wherein he referred to no such “policy.”
What Arbogast did testify to was that “people don’t stand at
the turnstiles . . . . When people come to work, they walk in,
they swipe and they go to work, they don’t congregate at the
turnstiles.” In further explanation of his competency to tes-
tify as to 850 production employee practice of accessing the
plant, he conceded that this conclusion is based upon mere
casual observation by himself when he enters the plant and
when he, on some unspecified number of times, stared out of
his northern facing office window at the west end of the
plant. Prior to the union campaign, he admitted that he did
not position himself in the guardhouse and watch entering
employees. There is no other evidence in the record, docu-
mentary or otherwise to support the conclusion that Respon-
dent had any policy as to how many employees could posi-
tion themselves at the turnstiles. Furthermore, it is undis-
puted that there was no limit on the number of employees
who lingered in the bus stop.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
Arbogast testified that the two-person turnstile rule which
limited the number of employee leafleters as well as any
other employee standing with them to no more than two per-
sons was precipitated by the current union campaign. He
testified that it was formulated and effectuated pursuant to a
joint discussion between himself, the general manager and
corporate headquarters representatives and legal counsel in
late February or early March 1996. Its unmemorialized ef-
fective date, he testified, was sometime in early March 1996.
There was no formal announcement made to employees who
learned about in on an ad hoc basis when it was enforced at
the turnstiles. Initially, as an adverse witness for the General
Counsel, Arbogast described the purpose of the rule as:

to strike a reasonable balance at the turnstile areas to
make sure that people can flow through very freely,
[and] . . . it enables our security department to insure
everything is safe in that area as well as we can visually
examine or see who enters the plant . . . [and] it insures
safety from the point that if you have large groups of
people in the area, what can happen is that people will
back into the—or end up into the roadway aisle [be-
tween the parking rows and turnstile approach path] at a
shift change [which] it is not the safest place to be in
any roadway in a plant.

The road he refers to, of course, is actually an east-west ve-
hicular aisle contiguous to the rows of parked employee cars
and parallel to the northern front of the fence to the east and
the visitor parking area and guardhouse, both of which abut
the fence to the west. No evidence was adduced that parking
lot speeding near the guardhouse is a frequent phenomenon.
Later, as a Respondent witness, Arbogast amplified the
purpose of the rule. He explained that it was important for
the guards at the guardhouse to have a clear view of the east
turnstile 176 feet away and already obstructed as described
above. He explained that a clear view was necessary in order
to observe whether employees who had entered had slipped
their magnetic cards back through the fence to unauthorized
persons who could then enter unobserved by the guards
whose view was obstructed. There is no evidence of any
kind that such conduct had constituted a problem or had ever
occurred.
Arbogast further testified that a clear view from the
guardhouse was needed so that the guards could observe any
conflicts between prounion and antiunion employees. There
is no evidence that such conflicts had occurred prior to the
time of the rule’s formulation even during past organization
campaigns.
There is very little evidence of conflicts between groups of
prounion and antiunion employees at the turnstiles or else-
where thereafter except for a couple of instances of alleged
individual harassment to be described hereafter regarding
solicitors.
Arbogast further testified that during the deliberations
which led to the rule, it was decided that groups of employee
leafleters would be intimidating to employees entering the
turnstiles. There was no explanation as to why it was de-
cided that two persons would not be intimidating but three
would, or that four would, or that five would be intimidating.
Respondent introduced the testimony of only two employees
who testified to feeling subjectively intimidated by the pres-
ence of a group of employees leafleters and supporters at the
east turnstile as they entered. One complained to Arbogast
after the rule was decided upon. Neither employee explained
satisfactorily why they chose not to enter the west turnstile
entrance where there was no leafleting. Neither employee
felt physically threatened.
Arbogast testified that any employees seen standing with
union leafleters were considered by him to have been allied
with the leafleters and thus were subject to the rule regard-
less of what conduct, if any, that allied employee had en-
gaged in at the turnstile. In any event, the multitude of
nonleafleting employees counseled, warned, and suspended
for noncompliance of the rule, and who refused Arbogast’s
or his security officers’ orders to move, testified that their
intent was to support the leafleters, support the Union, or
encourage incoming employees by their presence to accept
leaflets and to support the Union. Thus there is no dispute
that those employees were engaged in concerted activities
that would have been protected by the Act in the absence of
the two-person rule. In fact, generally, only two persons
actually leafleted. Most of the General Counsel’s employee
witnesses present during confrontations with Arbogast at the
turnstiles testified, when asked, that two leafleters were ade-
quate to accomplish effective leafleting. A few testified that
two leafleters were not adequate. All disciplined employees
corroborated Arbogast that they were given multiple warn-
ings by him at the turnstiles before they were subjected to
counseling, formal warnings and, in some cases, suspensions
varying from a day to a week.3 Again, the underlying reason
memorialized for the counseling and disciplining was the
employees’ refusal to obey Arbogast’s orders to disperse.
Generally, the employees testified that they believed Ar-
bogast’s orders were invalid and that they had a right to re-
main at the turnstile which in fact was the east turnstile
where all the confrontation and leafleting occurred.
Arbogast testified that on March 28, he enforced the rule
for the first time when he confronted 11 employees at the
east turnstile, advised them of the new rule and ordered all
but 2 of them to disperse. They complied with his order.
On the evening of April 3, the first episode occurred of
noncompliance with Arbogast’s dispersal orders under the
two-person rule at the east entrance at a confrontation with
about 10 to 12 employee leafleters and/or supporters of leaf-
leters, of whom 9 were identified in his notes: Ralph Hart,
Roger Eldridge, Louis Niedermier, Don Perdue, Dave Crum,
Ronald Grandstaff, Larry Beck, Robert Santer, and Robert
Berry. Arbogast testified that some employees were block-
ing the turnstile by standing in front of it for periods of sec-
onds or an unspecified number of minutes which varied per
employee. He could not identify any specific employee. No
employee was ever counseled for blocking turnstile en-
trances. Arbogast made no reference to blocking in his rec-
ordation of the event dated April 4. No security guard was
called to testify. Arbogast was not corroborated as to the
blocking allegation either by another witness, by recorded
notes or by counseling memorialization as to this episode or
any subsequent episode to which he similarly, vaguely testi-
fied that subsequent turnstile blocking occurred. No photo-

3 The rule was enforced at times when only one or two persons ex-
ceeded the limit. About 6 to 12 persons constituted the employee
turnstile groups but, on occasion, 20 persons were present. Respon-
dent clearly did not consider the number of persons in the group to be
a relevant factor in its enforcement efforts.
TIMKEN CO. 751
graph that was submitted into evidence several disclosed
blocking. Subsequent confrontations were photographed and
videotaped by Respondent’s agents. No videotape was of-
fered into evidence to corroborate Arbogast. The security
guard’s notes of the event, which were introduced into evi-
dence by the General Counsel, refer to no blocking. They do
reflect that after the alleged assault and battery incident
which occurred that evening, the leafleters and companions
were requested by him, on Arbogast’s orders “to allow more
room for employees to enter the turnstile [and] . . . those who
were still there, (10 to 12) did comply with the request.”
Hart, Eldridge, Grandstaff, Beck, and Niedermier all testi-
fied that no blocking occurred. I credit their more convinc-
ing, corroborated testimony and that of a parade of other
employees as to subsequent confrontations and discredit the
generalized, vague, unspecified, uncorroborated, unconvinc-
ing testimony of Arbogast that any significant blocking of
the east turnstile occurred on April 3 or at the following
similar episodes on the Thursdays of April 4, 11, 18, and 25,
May 2, 9, 23, and 30, June 6, 13, and 20, 1996.
According to the credible evidence of the handbillers and
their supporters and photographs, they divided themselves on
either side of a 10-foot long open path of at least 6-foot
width from the vehicle aisle to the turnstile. To the east, they
backed into a bicycle rack which occupied part of the space.
To the west at about 10 feet was the angled rear end of a
parked vehicle. A photograph (R. Exh. 12), dated April 4,
1996, discloses a view of 3 entering employees with at least
16 persons, i.e., leafleters and supporters divided about
equally on either side of the entrance path without even
closely suggesting the congestion characterized by Respon-
dent as a “wall of flesh.” At least half of the union group is
not even paying attention to the entering employees. Their
uncontroverted testimony reveals that they often chatted
amongst themselves socially about matters not even related
to the union campaign. If Respondent possessed photo-
graphs of worse congestion, it failed to proffer them into
evidence.
At most, the employees moved across the open path along
the aisle, momentarily stepping into the aisle or in the path,
but not so as to cause any entering person to delay ingress.
Except for isolated episodes discussed hereafter, there were
no taunts, no gestures, no chants, no heated words, but only
even-tempered solicitation to accept a leaflet and to support
the Union.
The counseling, warnings, and suspensions issued for in-
subordinate noncompliance with the rule did not cite any
misconduct other than refusal to disperse. All the confronta-
tions at the east turnstile concerning enforcement of the two-
person rule from April 3 to June 20, 1996, involved 22 coun-
seling sessions for insubordination, 28 written warnings for
insubordination, 5 written warnings with 5-day suspensions,
and 30 instances of 1- or 2-day unpaid “Investigation of Rule
Infraction” suspensions.
Based on employee responses in the counseling and warn-
ing sessions, Arbogast concluded that the employees had
acted based on an incorrect understanding of their rights as
probably explained to them by the Union. Accordingly, he
testified that Respondent deviated from its historic practice
of dealing with insubordination by giving a written warning
for a first occurrence and immediate discharge for subse-
quent occurrences.
On the evening of the April 3 confrontation, it is alleged
that Arbogast assaulted and battered Ronald Grandstaff, an
off-duty employee on sick leave who refused the order to
depart in view of six or seven employees. Grandstaff’s ac-
count of the event was not satisfactorily corroborated by the
General Counsel’s employee witnesses Ralph Hart and
Robert Berry who, in significant detail, corroborated Ar-
bogast. Grandstaff’s demeanor was neither spontaneous nor
convincing, and his testimony was internally inconsistent.
Arbogast was not corroborated by the testimony of the secu-
rity guard, except for his recorded notes adduced into evi-
dence by the General Counsel which do corroborate Ar-
bogast. I credit the more certain and convincing testimony
of Arbogast. I find that at most, Arbogast lightly touched
Grandstaff upon the shoulder when he requested him to leave
but that when Grandstaff erupted with vehement indignation,
Arbogast quickly removed his hand and in effect apologized
by saying, “Everything is cool.” I find that the incident is
too trivial to constitute any significant interference in the
form of a bodily attack.
Grandstaff, for a period of time, filed and pursued a crimi-
nal charge against Arbogast until he withdrew it on advice of
his attorney. Arbogast testified that on April 4, he heard a
variety of rumors at the plant to the effect that he had as-
saulted and battered Grandstaff the day before by a variety of
means and that he was going to be arrested. Arbogast testi-
fied that in order to protect himself and other Respondent
agents from future false accusation, none of which ever oc-
curred, that he would photograph and videotape every subse-
quent east turnstile leafleting event, which was done con-
tinuously thereafter as employees leafleted or stood with the
leafleters.
Respondent asserts that it had no intention to coerce em-
ployees but merely wanted documentation to protect Ar-
bogast and the security personnel as well as to have a record
in subsequent litigation.
It was stipulated by the parties that on all occasions when
there were more than two employees at the east turnstile, the
employees were videotaped and/or photographed at the
direction of the Respondent while engaging in passing out
union literature or standing with people who were passing
out union literature. That stipulation, as well as employee
testimony, indicates that such photographing and videotaping
were not limited to periods of time when Arbogast or the
guards were present and confronting them.
It is also alleged that the access restriction of employees
was enforced by the issuance of a disciplinary warning and a
parking ticket to employee Ralph Hart because he violated
the two-person limitation rule on about April 4, 1996. The
evidence fails to establish that Hart was issued a disciplinary
warning for parking in an unauthorized area. He was coun-
seled in April by Supervisor Leslie Keiter for insubordinately
refusing to comply with the two-person limitation rule on
April 3. Hart did receive a “parking ticket,” apparently on
April 4, for parking in an unauthorized area, i.e., the visitors’
parking lot, on April 3. Apparently, the citation was raised
in the Keiter counseling session but how and in what terms is
not clear. There is no evidence that Keiter related it to the
two-person rule. It is not clear who issued the ticket and
when. The nature of the citation was, apparently, an in-
house discipline. It is not clear what consequences, if any,
arise from such a citation. In any event, Hart admitted that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
the area he parked in was reserved for visitors’ vehicles but
that he chose it because it was “handy.” He testified that he
did so in the past, but the circumstances were not explained.
He admitted that the visitor parking area was an area where
he should not have parked his vehicle. There is no evidence
of disparity of treatment for such conduct. I conclude that
there is insufficient evidence to support any conclusions
about this vague and trivial episode.
2. Analysis
Respondent readily acknowledges, in its brief, “that its off
duty employees have the right under Section 7 of the [Act] to
distribute union literature and to solicit for the union on non-
work time and in non-work areas.” The General Counsel
argues that “the work place is a singularly appropriate place
for the distribution of Section 7 material,” quoting the Su-
preme Court’s observation in Eastex v. NLRB, 437 U.S. 556
(1978), “[the work place] is the one place where [employees]
clearly share common interests and where they traditionally
seek to persuade fellow workers in matters affecting their
union organizational life.” See Nashville Plastic Products,
313 NLRB 462, 463 (1993). Respondent points to the free-
dom allotted to its employees and nonemployees to distribute
literature in large groups at its highway entrances north of
the stop sign at Route 330. It points to its assistance to the
distribution center handbillers and its tolerance of insignia
wearing throughout the plant and literature distribution in the
cafeteria as evidence of its nonoppressive stance toward em-
ployees’ exercise of their Section 7 rights.
Respondent argues that the analysis herein ought not
therefore involve access issues because, in its opinion, there
was effective access by the Union and employees at the
highway entrances and by employees at the turnstiles where
effective leafleting occurred because of the ease with which
two employees could proffer a leaflet to a single file of em-
ployees entering one by one into the turnstile, and also in the
cafeteria and in the plant by virtue of insignia wearing. It
should be noted, however, that during an 8-hour shift, em-
ployees are entitled to only one 18-minute lunchbreak and
are allowed no other breaks except for ad hoc personal relief
breaks as needed upon supervisory approval. Thus opportu-
nity for solicitation in the cafeteria and in working areas was
not as extensive as it might otherwise seem. Arbogast testi-
fied that there was little downtime because machines are
constantly being tended.
Respondent, however, argues that because access was not
absolutely denied but only limited, that this case ought not
involve analysis of a no-access rule and application of no-
access legal precedent, but rather an analysis that balances its
right to control the use of its property against the alternative
effective means available for employee union advocates to
proselyte despite limitations imposed. Of course, Respon-
dent has not imposed an absolute universal no-access rule.
However, Respondent has denied access to certain areas and
to certain employees and this does constitute a no-access rule
for them. Respondent argues that the limitation upon em-
ployees in any event meets the test for a no-access rule valid-
ity set forth by the Board in Tri-County Medical Center, 222
NLRB 1089 (1976), in which the Board evaluated the valid-
ity of a rule prohibiting plant access by off-duty employees.
The Board in Nashville Plastic Products, supra at 463, reit-
erated that test, stating as follows:

In Tri-County, the Board has held that rules limiting
the access of off-duty employees are valid only if it:

(1) limits access solely with respect to the interior of the
plant and other working areas; (2) is clearly dissemi-
nated to all employees; and (3) applies to off duty em-
ployees seeking access to the plant for any purpose and
not just to those employees engaging in union activity.
Finally, except where justified by business reasons, a
rule which denies off-duty employees entry to parking
lots, gates, and other outside nonworking areas will be
found invalid [222 NLRB 1089 (1976)].

Respondent argues that it has met the business justifica-
tion criteria of the test. Respondent, however, ignores the
prerequisite that the restrictive rules must be disseminated to
all employees, which they were not, and applied to all em-
ployees, not just those employees engaged in union activi-
ties. Here, the rules were initiated in response to the union
campaign and applied only to employees involved in union
activities, i.e., witness the toleration of any number of em-
ployees in the bus stop to obstruct the view of the east turn-
stile, and the toleration of an obstructive stationary Red
Wing Shoe truck in the vehicular aisle near the east turnstile.
Respondent goes on to argue, pursuant to its suggested
balancing analysis, its right to use its private property as it
sees fit, particularly for safety concerns, must be balanced
against the effectiveness of employee union advocates’ alter-
native means of proselytizing within those limitations. Re-
spondent argues that the General Counsel and the Union are
seeking the absolute right of employees to engage in con-
certed activities anywhere anytime they desire despite its
impact on Respondent’s business. That is not the position of
the General Counsel. Rather, the General Counsel argues
that it is not within Respondent’s prerogative to arbitrarily
determine when, where and how many employees may exer-
cise rights guaranteed by the Act. Further, the General
Counsel argues that the test is not one of balancing interests
as would be done with nonemployee union agents, but rather
whether Respondent has satisfied the Tri-County criteria,
including the demonstration of business justification for the
limitation of off-duty employees’ protected activities and
that Respondent has failed that test in all of its restrictive
access rules.
The balancing test advanced by Respondent is one which
has been applied to nonemployee union agent visitors. See
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The balanc-
ing test implicitly concerns itself with the right of a union to
effectively carry its message to employees. The Tri-County
test addresses the individual rights of employees. The Board
has explicitly rejected the argument that Lechmere applies to
its off-duty employees. The Board considers off-duty em-
ployees who seek access for handbilling to fall within the
scope of Supreme Court precedent protecting their individual
organizing activities. Nashville Plastic Products, supra at
46, citing Beth Israel Hospital v. NLRB, 437 U.S. 483, 491
(1978); Eastex, Inc. v. NLRB, supra; and NLRB v. Le Tour-
neau Co. of Georgia, 324 U.S. 793 (1945). The Board’s
citation of Eastex in its reaffirmation of Tri-County under-
mines Respondent’s suggestion in its brief that Eastex estab-
lishes yet another kind of balancing analysis which, herein it
argues, is the balancing of its managerial concerns, i.e.,
safety and security versus individual employee handbilling
TIMKEN CO. 753
rights. I conclude that the Tri-County test is the one now
viable and applicable to the employee handbillers herein. In
any event, the “balancing” suggested by Respondent may be
just a variant restatement of the business justification analy-
sis in Tri-County.
Under the Lechmere test, Respondent’s defense has much
appeal and what some might characterize as pragmatic sense.
That is to say, the Union’s message was apparently carried to
incoming traffic north of the stop sign and to individuals
entering the turnstiles by two handbillers who did so freely
and without restraint. Yet, even under that analysis, the de-
fense is vulnerable because of the limited ability of union
supporters to proselyte and express support in the plant dur-
ing very limited nonworking time under a plant no-
solicitation/distribution rule. Further, regardless of whether
the nonleafleting employees who stood with the leafleters at
the turnstile actually said or did anything, their very physical
presence rendered an effective statement of numerical sup-
port and mute appeal for support. As one of the employees
testified, those entering the plant could see that employees
could stand witness to the union cause without fear and they
also could and were urged to do the same without fear.
Close monitoring and limiting that activity tended to dissi-
pate the impact of such message. In any event, under Board
precedent, it is the validity of the business consideration that
must be analyzed as justification for the deprivation of em-
ployees’ rights to handbill or show support thereof at certain
locations and times, and in numbers of their choosing rather
than the Respondent’s choosing under the Tri-County test as
reaffirmed in Nashville Plastic Products, supra. See also
Fairfax Hospital, 310 NLRB 299 (1993); and Sweet Street
Desserts, 319 NLRB 307, 312–313 (1995), where it was held
violative of the Act to promulgate a no-access rule solely in
response to organizational activity without evidence of busi-
ness justification.
With respect to the April 3–4 promulgation of a half-hour
turnstile access rule under the guise of a different preexist-
ing, no internal plant access rule, that conduct was clearly
violative of the Act as it was done solely in response to un-
ion activity without business justification. It is not a trivial
incident because certain employees suffered adverse person-
nel action, i.e., a negative counseling memorialization. Ac-
cordingly, a remedial order is necessary.
With respect to the turnstile and Route 330 entrance limi-
tations, applying the business justification analysis, it is ir-
relevant that effective access was reached by many other
union employee handbillers north of the stop sign and by two
handbillers at the east turnstile. Certain employees were
prohibited from engaging in concerted union activities a few
feet south of the stop sign, I conclude, without compelling
business reasons, and unrelated to the number of employees
involved and specific area south of the stop sign, i.e., pursu-
ant to an arbitrary decision of Respondent as to how and
when it would permit those activities which tended to un-
dermine the impact of the activities.
With respect to the east turnstile, there was no credible
evidence of blocking threats, intimidation of any signifi-
cance, unsafe traffic conditions, or group conflicts. That
such problems might have occurred is based on pure specula-
tion, not even premised upon past organizing campaign
events. Respondent argues that yes, the view of the east
turnstile was so obstructed even at the best of times and
therefore it could tolerate no further obstruction. Yet, the
evidence in the form of testimony and photographs fails to
demonstrate that the limitation of two handbillers would
provide any significant improvement. Furthermore, the need
for a clear view to prevent magnetic card abuse was a non-
existent problem and one upon which there is no evidence to
expect an occurrence. If, indeed, it had ever been a concern,
there would have been a guard at the east turnstile or at least
a clear view of it established.
With respect to the Route 330 entrance stop sign limita-
tion, neither testimony, photographs, nor schematic plans
offered into evidence cogently and clearly establish any basis
for perceiving that it was safer for handbillers to stand closer
to the highway traffic intersection in the center of the incom-
ing road, than further south after vehicles negotiated their
incoming turn and when only some of incoming traffic made
a second and necessarily slower turn into the first lane of
parking. It would have made more sense to have ordered the
handbillers to stand out of the driveway itself if the premise
was safety. The only instance of an unsafe incident was
when one handbiller complained that an incoming vehicle
nearly made contract with him. It is not clear whether the
cause of the problem was leafleting south of the stop sign or
more likely because the hand-biller was in the middle of the
driveway. Arbogast’s additional reason to maintain a clear
view of the stop sign is not convincing. The handbillers
were in the middle of the driveway and were not obscuring
the sign which was on the side of the driveway. The north of
stop sign rule, I conclude, was a mere arbitrary limitation
imposed by the Respondent without regard to actual numbers
of employees, actual conditions or actual location south of
the sign for no apparent safety concern. I therefore conclude
that all Respondent’s access limitations were imposed with-
out business justification, were not previously promulgated,
were a direct reaction to the union campaign and were lim-
ited to union handbillers. I conclude that they constituted a
demonstration of arbitrary authority and control of monitored
union handbilling. I find that such access limitations and
enforcement, including summoning the deputy sheriff, are
violative of Section 8(a)(1) of the Act as alleged in the com-
plaint.
With respect to the counseling, warnings, and suspensions,
the Respondent claims that such actions were for insubordi-
nation. When an employee is discharged for conduct that is
the res gestae of protected activities, the relevant question is
whether the conduct was so egregious as to take it outside
the protection of the Act. Consumers Power Co., 282 NLRB
130, 132 (1986). Respondent cites cases not appropriate to
the issue herein, i.e., precedent involving misbehavior in the
course of concerted activities, e.g., Earle Industries v. NLRB,
75 F.3d 400 (8th Cir. 1996), and Carolina Freight Carriers
Corp., 295 NLRB 1080 (1989). The instant case is distin-
guishable. The employees herein did not engage in any mis-
behavior in the course of performing work duties nor did
they refuse a work order in the course of asserting Section 7
rights. The off-duty handbillers herein, however, did refuse
a dispersal order up to the point of counseling, warnings for
those who persisted, and suspensions to a few who persisted
further. The activity they were engaged in was not the per-
formance of work tasks but rather union activities on their
own time. They performed the hand-billing and support
thereof in no insulting or offensive manner, albeit Arbogast
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
became incensed by their passive, sometimes nonacknowl-
edging reception of his dispersal orders. The handbillers’
presence would have been in no violation of any lawful ac-
cess policy of the Respondent. Under the foregoing analysis,
those orders were violative of the Act. The Board has long
held that a refusal to comply with such unlawful order does
not constitute unprotected insubordination, as the Union
correctly argues, citing Cooper Tire & Rubber, 299 NLRB
942, 953 (1990), which case in turn cites, inter alia,
Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616 (1962). See
also Simplex Wire & Cable Co., 313 NLRB 1311, 1316
(1994), involving an unlawful discharge for a refusal to obey
an unlawful order to cease protected activities in the plant;
and Olathe Healthcare, 314 NLRB 54 (1994), also involving
an unlawful enforcement of an overly broad solicita-
tion/distribution rule.
Accordingly, I find Respondent violated Section 8(a)(1)
and (3) of the Act by its enforcement of the unlawful access
limitation rules through the issuance of counseling, warn-
ings, and suspensions to employee union handbillers as al-
leged in the complaint.
With respect to the surveillance of the protected handbill-
ing by photographs and by videotaping, Respondent asserts
that it was simply done for defensive and noncoercive moti-
vation. It is lawful for an employer to observe open union
activity. However, continuous scrutiny over substantial pe-
riods of time may constitute coercive surveillance. Nashville
Plastic Products, supra at 463–464. The test of validity of
such conduct is whether there was proper justification and
whether it reasonably tends to coerce employees. F. W.
Woolworth Co., 310 NLRB 1197, 1204 (1993) (handbillers);
Athens Disposal Co., 315 NLRB 87, 98 (1994); Dayton Hud-
son Co., 316 NLRB 477 (1995) (leafleters at store entrance);
and Parsippany Hotel Management Co., 319 NLRB 114
(1995), and cases cited therein. The mere belief that some-
thing might happen to justify the recordation is insufficient
when balanced against the tendency it may have to interfere
with the free exercise of employee rights. F. W. Woolworth,
supra.
Respondent’s photographing and videotaping were not
shown to be limited to times when Arbogast or the security
guards conversed with the handbillers. It was continuous
and unlimited and, I conclude, unjustified by the single, early
episode involving Grandstaff. No similar confrontations
occurred thereafter. I find that the pervasive photographing
and videotaping unlawfully complemented the invalid access
limitations and their unlawful enforcement and reasonably
tended to discourage employees from engaging in or support-
ing lawful union handbilling and therefore was violative of
Section 8(a)(1) of the Act as alleged in the complaint.
C. Removal and Confiscation of Union Literature
1. Bulletin board
The employee handbook sets forth a preexisting rule re-
stricting the use of the plant bulletin boards to managerially
approved materials. Employees have no statutory right to
use an employer’s bulletin board but, if permission is
granted, it must not be accorded selectively and disparately
to prevent union literature postings whereas other nonbusi-
ness postings are permitted. Honeywell, Inc., 262 NLRB
1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983). An em-
ployer who permits nonbusiness postings but excludes union
related material violates the Act. Kroger Co., 311 NLRB
1187, 1199 (1993); Fairfax Hospital, 310 NLRB 299, 304
(1993); and Ford Motor Co., 315 NLRB 609, 613 (1994)
(involving permitted postings of personnel notices).4
The General Counsel argues that prior to the 1995–1996
union campaign, the Respondent permitted its employees to
post a variety of personal notices, cartoons, and newsprint
articles. It is the Respondent’s position that only business
related matters were allowed to be posted on about 11 com-
munication boards throughout the plant and “departmental
boards” and that the supervisors have routinely enforced that
rule by removing all other materials found there with one
exception. Arbogast testified that the sole exception was that
a personal condolence card or thank you card relating to a
death in an employee’s family may, on approval of the gen-
eral manager or his agent, be placed by the supervisor for a
short time only on the departmental board. Union literature
was admittedly removed during the campaign from informa-
tional boards. The General Counsel adduced the testimony
of employees Joyce Bordner, Diana Gabriel, Michael
Shiefer, and Stephen Bishop as to the use of the bulletin
boards. Bordner testified that she, on unspecified dates,
observed thank you notes for flowers sent to bereaved or ill
employees and undescribed cartoons posted on “bulletin
boards” on her line in buildings 8(A) and (B). She testified
that she saw unidentified supervisors and managers reading
the cartoons but that she did not see them remove the car-
toons. However, she testified they were removed subse-
quently after some undisclosed period of time. Even if those
unidentified persons were in fact supervisors within the
meaning of the Act, her testimony is so vague as to be non-
probative.
Similarly, Gabriel testified with the same vagueness that
on unspecified dates she observed unidentified persons she
characterized as “supervisors” read and walk away from one
notice for one weekend hog roast at a blue grass festival held
on the notice author’s farm, an unspecified number of auc-
tion notices, sympathy cards and unspecified numbers of
“notices for get well presents” posted on four bulletin boards
in the area where she works in the “old cone finish” building
8A. She was silent as to what length of time, if any, those
items remained posted.
Shiefer testified there are three bulletin boards where he
works in building 8(A), cone finish, on the north wall. He
testified that on unspecified dates “from time to time,” he
observed an unspecified number of auction notices authored
by two hourly paid employees and one hog roast notice in
October 1995 authored by an unnamed supervisor. He testi-
fied that at some unspecified time the auction notices were
removed, as was the hog roast notice, the latter after the
event. He admitted that he observed supervisors “eventu-
ally” removing the auction notices. In redirect examination,
he testified that he also saw supervisors removing cartoons.
Bishop also works in building 8(A). He identified six bul-
letin boards at the end of the lines and one main one between
the restrooms. He testified broadly that employees have
posted “anything they want to put up there [on the line

4 Respondent’s cited authority to the contrary is Guardian Indus-
tries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995), which rejected the
Board’s view and found that permitted personal notice of sales and
social announcements did not constitute discriminatory conduct.
TIMKEN CO. 755
boards].” He observed auction notices, thank you notes from
the ill or hospitalized, cartoons, newspaper clippings, and
“just about everything under the sun.” None of the postings
were described or otherwise identified. He testified that he
observed supervisors tearing down and throwing away “cer-
tain things that they didn’t like or thought they shouldn’t be
there,” which he did not identify, but that they did not re-
move the auction notices. He testified that he posted unde-
scribed newspaper clippings on unspecified dates without
permission and without being disciplined. In cross-
examination, he admitted that he did not know whether all
employees posted personal materials.
Respondent adduced the testimony of several supervisors.
They testified that they routinely removed unauthorized ma-
terials, including auction notices and cartoons.
I agree with the Respondent that in a large plant of 850
production employees, there are bound to be some limited
occasions when unauthorized materials have been posted.
However, based on the very generalized, vague, imprecise,
very limited testimony of 4 of the General Counsel’s 45 wit-
nesses, I cannot conclude that Respondent had tolerated free
use of its bulletin boards for unauthored personal notices to
the extent that its removal of union literature can be found
disparate or discriminatory. Thus I find no merit to this
complaint allegation.
2. Cubbyhole and toolbox literature confiscation
Undisputed testimony reveals that union literature placed
face up on top of employee purses and lunch bags in cubby-
holes used by employees, as well as union stickers attached
to the interior walls of the open-faced cubbyhole, were re-
moved and confiscated on the grounds that the cubbyholes
near the work area were the property of Respondent despite
the fact that materials placed therein were the personal prop-
erty of the employee.5 Locker rooms are located away from
the work area and there is no evidence of union literature
confiscation in the locker rooms. Similarly, union literature
was taken from the toolbox of employee and union activist
Roger Eldridge on one occasion, May 4, when he placed a
union leaflet face up on the top of his personally owned
items therein at his work area on working time. According
to the confiscating supervisor, he did so because the toolbox
had been on the floor, which was Respondent’s property, in
the working area even though no one was seen reading the
leaflet.
The Respondent argues in the brief that the leaflets were
removed pursuant to a proper nondiscriminatory enforcement
of its solicitation rules because such open-faced literature
was “capable of being read by people walking by during
work hours” and, on their face, constituted a solicitation for
support. Respondent’s responsible agents testified to the
routine removal of nonunion litter and newspapers from the
cubbyholes. Employee Cooley testified without contradic-

5 Roberta Shifflet testified to two instances of cubbyhole confisca-
tion, one of which she claimed involved singled folded leaflet of dis-
tinctive color. The then Cupp Business Manager Menning testified
that he removed several documents which he recognized as solicita-
tion. I do not discredit the more certain Menning that the condition of
the document or documents was such as to have enabled him to recog-
nize it as an open solicitation for union support. Arbogast testified
that it was Respondent’s policy and practice not to remove face down
literature or that which is attached to employee property, or face down
in toolboxes.
tion that employees who wish to sell items such as candy or
cookies place them in the cubbyholes. Employees who wish
to purchase the items will place money in the cubbyhole and
remove the items. She testified to a variety of sales on work-
ing time, but she was unclear where these sales were negoti-
ated. She said some of them occurred in the locker room.
She did not describe where the cubbyhole sale was negoti-
ated nor how and where the pickup was arranged. There is
no evidence that supervisors are aware of such sales by cub-
byhole, and it is unclear how extensive the practice was and
how evident that the material therein was for sale since the
practice was apparently done by word of mouth. No specific
cubbyhole is assigned to any specific employee.
Respondent’s argument rests on its contention that the ma-
terial in the work areas was capable of being read by an em-
ployee walking by during working time, thus being subject to
solicitation. Respondent tolerated the wearing of union in-
signia attached to employees’ work clothing and stickers
attached to purses or other personal property during working
time and work areas. See Burger King Corp., 265 NLRB
1507 (1982); Malta Construction Co., 276 NLRB 1494
(1985), for a discussion of employees’ presumptive right to
wear union insignia.
In reality, any literature proffered for reading, whether by
physical tender or by strategic placement for reading, consti-
tutes a distribution albeit the message therein was a solicita-
tion. I conclude that the Board’s test for validity of distribu-
tion limitation is the appropriate test herein. An employer
may prohibit the distribution of union literature in working
areas but a broad rule banning distribution during nonwork-
ing time in nonworking areas of the plant is presumptively
invalid. Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616–621
(1962). A prohibition of union literature anywhere in the
plant is presumptively invalid on its face where there is no
shown need to maintain production and discipline. Formosa
Plastics Corp., Louisiana, 320 NLRB 631, 632 (1996), citing
Stoddard-Quirk, supra.
There is court precedent, contrary to the Board’s views,
that it was lawful for an employer to order temporary em-
ployees to remove union stickers from hard hats which were
company property on the grounds that since the employer
recognized presumptive rights of employees to wear union
insignia on their own clothing, including jackets owned by
them, that the employer need not suffer its own property to
be used as a “billboard” for the union. NLRB v. Windemuller
Electric, 34 F.3d 384 (6th Cir. 1994), enfg. in part 306
NLRB 664 (1992) (the court applied a Lechmere test of va-
lidity).
The General Counsel’s theory of violation in regard to the
leaflet confiscation rests upon alleged disparity of treatment.
The only evidence of disparity cited in Cooley’s testimony, I
find to be inconclusive. As a distribution, the placement of
literature clearly occurred in the working areas on working
time. If the placing of literature is a solicitation, it also oc-
curred during working time in working areas. Neither con-
duct was shown to have been disparately treated. Accord-
ingly, I find no merit to this complaint allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
D. Disciplinary Enforcement of the No-
Solicitation/Distribution Rule
1. The policy
Respondent’s preexisting handbook rule prohibited solici-
tation or distribution of literature on working time. Arbogast
testified that Respondent strictly enforces that policy and that
supervisors are instructed that they should counsel individu-
als who solicit and if solicitation persists, disciplinary action
should be taken. He testified that the Respondent has turned
away charitable organizations, free pizzas, and discounts on
food pursuant to the solicitation rule, and that, as corrobo-
rated by Supervisor Leslie Keiter, if supervisors notice the
sale of Girl Scout cookies, candy bars for Little League, or
other similar products, they are under orders to stop the so-
licitation.
The Respondent also makes a distinction between solicita-
tion and conversation in that it permits employees to talk
about the Union while on working time on the lines at their
machines but prohibits solicitation for union support on
working time. Arbogast testified that as long as employees
are tending their machines without formal breaks and with
only one 18-minute lunchbreak, Respondent does not care
what they talk about. However, if they leave their machines
and gather in a group, they will be ordered back to their ma-
chines. He defined solicitation as, “when someone tries . . .
to solicit for the procurement of, or sale of goods, for the
acquisition of something for the sale of something.” He gave
as examples in addition to the sales of cookies and candies,
the membership in fraternal organizations.
The prohibition of any protected activity, including union
solicitation in work areas during nonworking time, is pre-
sumptively unlawful. Brunswick Corp., 282 NLRB 794, 795
(1987), and cases cited therein; Ford Motor Co., 315 NLRB
609 fn. 2 (1994), citing Brunswick. The General Counsel,
however, argues that Respondent disciplined, i.e., counseled,
employees Roberta Shifflet on about March 8, 1996, James
Knapp on about March 9, and employees Roger Pfleiderer,
Richard Sharp, and John Harvey on about May 23 as a result
of a disparate enforcement of its working time, nonsolicita-
tion rule. Respondent admits the counseling but denies any
disparity of treatment and contends further that the May 23
counseling of those three employees related to a violation of
its preexisting handbook rule prohibiting the harassment and
abuse of coworkers. It contends that those three employees
harassed a coworker in a solicitation related incident.
2. Evidence of disparate treatment
The General Counsel argues that “solicitation on the work
floor during worktime was fairly commonplace,” and that
Respondent’s enforcement of its solicitation rules was “spo-
radic at best.”
Only four of the General Counsel’s witnesses testified in
support of the disparity allegation, i.e., employees Pfleiderer,
Knapp, Cooley, and Louis Niedermier.
Pfleiderer testified to a past practice of supervisor tolera-
tion of employee talking during working time in working
areas. He testified that there were occasions when he dis-
cussed the Union during working time in working areas dur-
ing which he sometimes stopped work. He was counseled on
May 23, 1996, for harassment of a coworker but not for talk-
ing about the Union. The incident will be discussed more
fully hereafter.
Knapp’s testimony in direct examination regarding solici-
tation toleration was very generalized and conclusionary, i.e.,
he saw during the entire period of his employment from 1968
“people [employees?] selling raffle tickets for a volunteer
fire department, your Girl Scout cookies, Little League Ball,
a lot of community activities, people bring in things for their
kids to sell and that’s for the community type [sic].” He
gave no names, dates, locations, or any circumstances except
that it occurred “at work.” He answered, “Oh, yes, they’re
aware of it” to counsel for the General Counsel’s question of
whether unnamed supervisors and management were aware
of it. In cross-examination, he testified that the solicitations
occurred “in the working site” in front of “supervision.”
However, he could not identify specific occasions when a
supervisor was present, but he identified his own supervisor,
Leslie Keiter, as having been present. Again, he could not
recall any specific occasion when Keiter was present. He
was asked and he answered:

Q. Throughout the time that you have been with the
company, has the company had this rule prohibiting so-
licitation?
A. Yes, that I know of.

Niedermier testified that he has seen during working time
and in working areas employees soliciting for “lotteries—
football lotteries, state lotteries, different ticket sales, candy
bar sales, shoe sales.” He only identified one such occasion.
On April 10, 1996, he observed an hourly rated employee,
Lee Holt, selling candy bars of which two candy bars were
sold to Niedermier’s supervisor, Beatrice Morton, at an un-
described work area where Niedermier does his 2 o’clock
routine scrap check. He gave no further details, i.e., whether
it was Holt’s working time or personal breaktime.
Cooley testified that “at work,” she observed other un-
named employees at undisclosed times and places sell Girl
Scout cookies, Little League candy bars, raffle tickets, and
bicycles. She testified that currently, she observed sales for
“Chef’s Pride,” a specialty kitchen utensil. She answered
“[Y]es,” to counsel for the General Counsel’s question as to
“whether any of these products are sold during work time.”
She did not explain. She testified that “supervisors,” includ-
ing every supervisor she ever had, bought candy bars and
cookies to benefit school children from herself and other
employees “on work time.” She named no other supervisor.
She gave no details as to location nor explanation as to
whose worktime was involved, i.e., herself or other employ-
ees. Her current supervisor for a year and a half is Dave
Bailey. In cross-examination, more elucidation was elicited.
She admitted awareness of the handbook’s working time,
solicitation prohibition but claimed it had never been en-
forced. She admitted that yes, soliciting employees could
have been counseled without her awareness. She identified
fellow employee Kim Sebring as having sold candy bars with
her in May 1996 and an employee named Tisha who sold the
kitchen utensils. She explained that Tisha executed the sales
in the locker room by leaving her order booklet in the locker
room for employees to make the sale order there. As noted
elsewhere, with respect to the cubbyhole issue, she described
how she left something, probably another order booklet in
the bathroom, and using the cubbyhole as a drop-pickup site
for candy bars and cookies. She could not identify any other
TIMKEN CO. 757
employee in her 8 years of employment who violated the
working time, no-solicitation rule.
Supervisor Keiter denied having ever observed the solici-
tation for sales by employees in the work area and stated that
he would have enforced the solicitation policy if he had done
so by confrontation and counseling. Supervisor Morton de-
nied that she purchased candy bars from employee Holt on
April 10 and denied that she observed such sales and insisted
with certitude and conviction that she would not tolerate
such sales. Both Keiter and particularly Morton testified
with greater certainty and more persuasively than Knapp and
Niedermier. I credit Keiter and Morton. Bailey did not tes-
tify, but Cooley’s testimony is so imprecise, conclusionary,
and uncertain as to be of no probative value.6 Her cross-
examination revealed that the only solicitations she could
specifically recall occurred in the bathroom and locker
rooms. As to the pickup at the cubbyhole, there is no evi-
dence that it was witnessed by a supervisor.
Regardless of the credibility of the General Counsel’s wit-
nesses, the testimony of 3 of 45 witnesses of 850 employees
is too generalized, imprecise, and conclusionary to support a
finding of widespread Respondent toleration of nonunion
solicitations on working time. I cannot conclude that en-
forcement of the solicitation rule against union solicitations
during working time would constitute disparate treatment.
Furthermore, if the Respondent had enforced the no work-
ing time solicitation in the locker rooms, the bathroom, and
on personal breaktime, it might have been liable to a charge
of unlawful interference inasmuch as such time in work-
places, when employees are not actively working, is not con-
sidered by the Board to constitute working time despite the
fact that employees are paid for such time. Sweet Street Des-
serts, Inc., 319 NLRB 312–313 (1995); see also Our way,
Inc., 238 NLRB 209, 214 (1978); Ichikoh Mfg. Inc., 312
NLRB 1022 (1993); and Wellstream Corp., 313 NLRB 698,
703 (1994).
3. The counseling of Shifflet and Knapp
The General Counsel alternatively argues that according to
Shifflet and Knapp, they merely talked to other employees
on working time about the Union and did not solicit union
support. Knapp admitted that he had a conversation with a
coworker on working time wherein he told the coworker that
he thought the employees needed a union. This does not
come within Arbogast’s above-noted definition nor the coun-
seling supervisor Keiter’s definition of solicitation, i.e., try-
ing to sell or “push” something or someone. According to
Knapp, he merely expressed an opinion.
Shifflet testified that she merely inquired of coworker
Mike Young whether he had signed a union card while on
her personal relief break. She had no union cards and did not
solicit his signature. It is not clear whether Young was en-
gaged in active working at the time. He did not testify.
Shifflet denied, however, any other union card-referenced
conversations. I agree that such casual inquiry would not fall
within Respondent’s agents’ definition of solicitation. She
was counseled by Supervisor Ridge for solicitation during
working time.

6 Bailey’s supervisory status is not alleged in the complaint and it
was not litigated. There is a Larry Morton alleged as a supervisor but
not a Beatrice Morton.
Respondent proffered the testimony of Keiter and Ridge to
prove that Knapp and Shifflet’s conduct went beyond what
they had testified. They, however, acted upon reports of
employees who reported the solicitation. The employees did
not testify. I must credit the testimony of Shifflet and Knapp
inasmuch as the contradictory hearsay is obviously nonpro-
bative of actual misconduct.7
At best, I find that Respondent had reasonable cause to be-
lieve that the two employees had engaged in misconduct
during the course of protected activities not inconsistent with
plant rules, i.e., merely talking about the Union. The Re-
spondent has raised a presumption of misconduct which the
employees have rebutted. Thus, Respondent has acted at its
risk in adversely counseling two employees who had en-
gaged in protected activities while committing no actual
misconduct and therefore Respondent violated Section
8(a)(1) of the Act. Keco Industries, 306 NLRB 15, 17
(1992), citing NLRB v. Burnup & Sims, 379 U.S. 21, 23
(1964); and see also Alexander Linn Hospital Assn., 244
NLRB 387 (1979).
4. The counseling of Pfleiderer, Sharp, and Harvey
The above-named three employees were adversely coun-
seled for harassment of a fellow employee. The Harvey
counseling was not alleged in the complaint, but he was al-
legedly involved in the purported union-solicitation harass-
ment of employee Shauna Moore on about May 23, 1996, as
were Pfleiderer and Sharp.
Respondent had maintained a preexisting rule against
“fighting, striking, threatening or intimidating another [em-
ployee] or supervisor, committing any act of violence or
improper or immoral conduct, using abusive, profane, or
improper language to another [employee] or supervisor.”
I credit Moore’s testimony where it conflicts with that of
Pfleiderer or Sharp. She testified in a fluently, vivid, more
spontaneous and more certain and sure, convincing manner
than did Pfleiderer or Sharp. Accordingly, I find that the
following events occurred. On May 22, 1996, during work-
ing hours on the afternoon shift during working time, Pflei-
derer admittedly unsuccessfully solicited employees to pass
out union literature and in so doing, admittedly upset them.
Moore was one of those who refused. Pfleiderer persisted in
asking her if her coworker, Sherry Wells Young, was inter-
ested in passing out literature. Moore answered, “I don’t
know. Ask her. There she is.” Her tone of voice in recount-
ing the incident indicated that she responded to Pfleiderer in
an impatient or exasperated manner. Wells Young came up
next to her just as Pfleiderer finished his question, but Moore
walked away at that point. On the afternoon shift of May 23,
1996, as Moore approached the east turnstile, Pfleiderer ex-
tended a union flyer to her. She declined, saying “[N]o
thank you.” He retorted “[T]ake the goddamn thing.” She
angrily responded with an obscenity. During the course of
her working time that night, Sharp, a past good friend, ap-
proached her. She told him she was upset with Pfleiderer’s
solicitation attempts. She told him that she had attempted to
retrieve and rescind her union card. Sharp angrily and loudly
7 I do not view Ridge’s testimonial account of Shifflet’s counseling
response as an admission of misconduct, “Well, I didn’t realize I was
doing that, I understand now.” In any event, I find her contradictory
version of the conversation more certain, convincing and spontaneous
and more credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
persisted in trying to get her to explain why. She did so.
More, a relatively young person, answered that she acted
upon her father’s advice. Sharp yelled out that her father
was a stupid son of a bitch and that she was stupid if she
followed his advice and otherwise reproved her. Sharp, an
older, more mature person, was shouting and thrust his finger
in her face. She unsuccessfully tried to move away from
him. She began to visible shake and she wept. She testified
that Wells Young had attempted to come to her aid by re-
monstrating with Sharp but that Harvey appeared and re-
strained Wells Young and caused more commotion. Sharp
departed as Moore’s supervisor approached. She complained
to her supervisor, Richard Spradlin, about Sharp and asked
for permission to go home. Spradlin reported the incident to
Arbogast. Moore had also complained to Spradlin of Pflei-
derer’s solicitation attempts that preceded the Sharp confron-
tation.
Harvey admitted that he observed from a short distance on
the next job Moore “having problems” with Sharp, i.e., she
was shaking and “almost in tears.” He asked if she were all
right and she complained that Sharp had harassed her and
that Pfleiderer had pushed literature at her. He confirmed
that she complained at that time that Sharp had said things
about her father and that it was apparent to him that she was
defending her father. Harvey claimed that Sharp had started
moving away as Harvey approached. Harvey denied that he
even talked to Wells Young or blocked her attempts to join
the conversation. Wells Young was not called to testify. I
find the testimony of Moore more convincing than the less
spontaneous Harvey.
I conclude that Respondent has established sufficient fac-
tual justification for its counseling of Pfleiderer, Sharp, and
even Harvey, although the complaint was never amended to
include Harvey. Pfleiderer, in any event, violated the no-
working time solicitation rule and would have been liable for
counseling for violation of that rule, if not harassment. Simi-
larly, Sharp’s abusive hectoring of Moore’s desire to with-
draw her union support also constituted grounds for liability
under the no working time solicitation rule. Accordingly, I
find no merit to the complaint allegation regarding the May
23 counseling of Pfleiderer and Sharp. Finally, I do not find
that Harvey was engaged in any union or concerted protected
activity regardless of his actual culpability for misconduct.
E. The Open Door Incident
The General Counsel alleges that on April 25, 1996, Re-
spondent violated Section 8(a)(1) of the Act by the conduct
of its agent, Donald Leitzy, by his threatening of employee
David Kelley with discipline for viewing out from within the
plant, through an open overhead garage-like door, employees
engaged in the concerted protected union leafleting at the
east turnstile.8
On April 11 or April 25, 1996, as on other Thursdays, a
group of employees gathered at the east turnstile. Arbogast
testified that while explaining Respondent’s policy regarding
the turnstiles to the employees present at the east turnstile
that morning, he observed a group of employees gathered in
the heat treat doorway of the bearing plant. The doorway is
a 16-foot overhead door which resembles a large garage

8 Leitzy testified that the events occurred on April 11. He testified
that he acted pursuant to an instruction by Arbogast who also testified
that the date was April 11.
door. Arbogast summoned a supervisor, Donald Leitzy, and
informed him that a group of employees had gathered in that
doorway. By the time Leitzy arrived at the door, David Kel-
ley was the only person in the area. Leitzy testified that he
asked Kelley if he was standing in the doorway observing
what was going on at the east turnstile and that Kelley re-
sponded that he was observing the events at the east turnstile
but that this was his work area. According to Leitzy, Kel-
ley’s response ended the conversation. He denied that he
told Kelley that he “could be punished” for viewing the leaf-
leting.
According to Kelley, Leitzy also told him that the door
would be closed thereafter, to which Kelley responded that it
was a ridiculous thing to do because of the extreme heat in
that part of the plant. Kelley testified that Leitzy retorted:
“This–it will be closed and this is an oral warning.” In
cross-examination, although Kelley conceded that he did not
consider himself to be disciplined per se, he reiterated that he
had been orally warned, i.e., warned of future discipline. He
testified:

He really just told us to stay away from there, the whole
area, and I said, this is my work area. And when I pur-
sued it, he told me this is an oral warning.

There is no dispute that Kelley was in his work area at the
time of the viewing. There is no evidence that he halted his
work activities nor neglected them for any significant time.
Leitzy did not dispute Kelley’s protest to him that he was in
his work area. Leitzy admitted that Kelley was normally
permitted to walk to the door which is concededly in his
work area to get cool air and that he had at least a partial
view of the machines he was running from the doorway.
Thereafter, the door was opened only to waist level on
Thursdays so that employees would not be enticed to the
doorway. This conduct is not alleged to be unlawful.
With respect to any differences in their testimony, I credit
Kelley over Leitzy. Kelley was more detailed, assured,
spontaneous, and convincing.
I conclude that Kelley was orally warned of unspecified
adverse personnel action if he were to view outside union
activities from the doorway in his work area regardless of the
status of his work, or any interference with it, and regardless
of whether he was simply getting a breath of air or walking
by the doorway. By such disparate conduct, I find that Re-
spondent, by its agent Leitzy, violated Section 8(a)(1) of the
Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. As found above, Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. As found above, Respondent has violated Section
8(a)(1) and (3) of the Act and, further, I find such violations
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act, I
recommend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the
purposes of the Act. Having found that Respondent unlaw-
TIMKEN CO. 759
fully in the enforcement of its access, solicitation and distri-
bution rules, counseled and issued written warnings to em-
ployees and suspended employees in March, April, May, and
June 1996, as reflected in Joint Exhibit 1 “Record of Associ-
ate Infractions and Actions of The Timken Company,” I shall
recommend that it remove all records of such personnel ac-
tions wherever located in any of its files and make all em-
ployees who were suspended under such enforcement9 whole
for any loss of earnings and other benefits, plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, The Timken Company, Bucyrus, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully and disparately prohibiting employees
from engaging in the discussion of union matters while
working.
(b) Unlawfully threatening employees with discipline for
viewing employees engaged in union handbilling.
(c) Implementing and disparately enforcing rules which
limit the access of off-duty employees engaged in concerted
protected union activities to areas other than the interior
plant and other work areas, including plant public highway
entrances and pedestrian turnstile entrances, without business
justification for such limitation.
(d) Adversely counseling, warning, suspending, or other-
wise disciplining employees for violations of the above re-
ferred to unlawful access rules.
(e) Unlawfully coercing employees engaged in union
handbilling by summoning local police authorities to dis-
perse them.
(f) Unlawfully videotaping and/or photographing employ-
ees engaged in union and/or protected concerted activities.
(g) In any other like or related manner interfering with, re-
straining or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the unlawful access rules described above, in
writing, and notify all employees of such.
(b) Remove all disciplinary warnings, notes of counseling
sessions, suspensions, investigatory, or otherwise, and all
other discipline given to employees in March, April, May,
and June 1996 in enforcement of the above-described unlaw-
ful access limitation rules as described in the remedy section
of this decision or thereafter, in whatever file they may be
contained, and notify those employees, in writing, with a
copy to the Regional Director, that such expungement has
been accomplished.

9 Excluding the harassment counseling to Sharp, Pfleiderer, and
Harvey on May 23, 1996, and the parking tickets to Ralph Hart on
April 3 and May 5, 1996.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Make all employees whole for all monetary losses suf-
fered as a result of their unlawful suspensions in the manner
set forth in the remedy section of this Decision.
(d) Within 14 days after service by the Region, post at its
Bucyrus, Ohio facilities copies of the attached notice marked
“Appendix.”11 Copies of the notice, on forms provided by
the Regional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since March 1,
1996.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT unlawfully and disparately prohibit em-
ployees from engaging in the discussion of union matters
while working.
WE WILL NOT unlawfully threaten employees with dis-
cipline for viewing employees engaged in union handbilling.
WE WILL NOT implement and disparately enforce rules
which limit the access of off-duty employees engaged in
concerted protected union activities to areas other than the
interior plant and other work areas, including plant public
highway entrances and pedestrian turnstile entrances, with-
out business justification for such limitation.
WE WILL NOT adversely counsel, warn, suspend, or oth-
erwise discipline employees for violations of the above re-
ferred to unlawful access rules.
WE WILL NOT unlawfully coerce employees engaged in
union handbilling by summoning local police authorities to
disperse them.
WE WILL NOT unlawfully videotape and/or photograph
employees engaged in union and/or protected concerted activi-
ties.
WE WILL NOT in any other like or related manner inter-
fere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
11 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
WE WILL rescind the unlawful access rules described
above, in writing, and notify all employees of such.
WE WILL remove all disciplinary warnings, notes of
counseling sessions, suspensions, investigatory, or otherwise,
and all other discipline given to employees in March, April,
May and June 1996 in enforcement of the above-described
unlawful access limitation rules or thereafter, in whatever
file they may be contained, and WE WILL notify those em-
ployees, in writing, with a copy to the Regional Director, that
such removals has been accomplished.
WE WILL make all employees whole for all monetary
losses suffered as a result of their unlawful suspensions.
THE TIMKEN COMPANY