Veeder-Root Co.

National Labor Relations Board - Board Decisions

Aug 24, 1971

192 N.L.R.B. 973 (N.L.R.B. 1971)

VEEDER-ROOT COMPANY 973
Veeder-Root Company, Altoona Division and United
Steelworkers of America, AFL-CIO. Case
6-CA-5120
August 24, 1971
DECISION AND ORDER
CHAIRMAN MILLER AND MEMBERS BROWN
'AND JENKINS
On February 10, 1971 , Trial Examiner Robert E.
Mullin issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed . Thereafter, Respondent and
General Counsel filed exceptions to the Trial
Examiner 's Decision and supporting briefs.
Pursuant to the provisions of Section
3 (b) of the National Labor Relations
Act, as amended, the National Labor
Relations Board has delegated its powers in
connection with this case to a three - member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs,, and
the entire record in the case , and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner , as modified herein.
The Trial Examiner noted that the Respondent's
prohibition of solicitation during working time is
presumptively valid on its face . However, he found
the Respondent's repromulgation of this rule on
April 10 was to deter the employees from participat-
ing in the; Union's organizational campaign. There-
fore, the Trial Examiner found that the Respondent
violated Section 8(a)(1) of the Act by its repromulga-
tion for an unlawful purpose of an otherwise valid
rule against solicitation on working time . We do not
agree that the repromulgation of this rule is a
violation of the Act. The Respondent's rule prohibit-
ing solicitation during working time is a valid rule
and has been in existence since long before the
commencement of the union campaign in this case.
Moreover, employees were aware of this rule before
the Respondent again called . attention to the rule'by
posting it on the bulletin board. We are unable to
conclude that reminding employees of an existing,
192 NLRB No. 133
valid no-solicitation rule at the outset of a union
campaign, and at a time when they are more likely to
forget or disregard it, evidences an unlawful purpose.
Accordingly, we find that the Respondent did not
violate the Act when it republished its valid no-
solicitation rule.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of'the Trial Examiner as modified below and
hereby orders that the Respondent, Veeder-Root
Company, Altoona Division, Altoona, Pennsylvania,
its officers, agents, successors , and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order, as herein modified.
1. Substitute the following for subparagraph 1(b)
of the Trial Examiner's recommended Order:
"(b) Prohibiting employees from distributing litera-
ture on behalf of x union in nonwork areas on
nonwork time."
2. Substitute the following for subparagraph 2(a)
of the Trial Examiner's recommended Order:
"(a) Rescind its no-distribution rule in the employ-
ee handbook and the no-distribution rule posted on
April 10, 1970, as it applies to union solicitation or
other activities protected by Section 7 of the Act."
3. Substitute the attached notice for the Trial
Examiner's notice.
MEMBER JENKINS, dissenting in part:
For the reasons given by the Trial Examiner, I
would affirm his findings of violations in the issuance
and maintenance of the original no-solicitation rule
and in the repromulgation of the altered no-solicita-
tion rule.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively, or otherwise unlaw-
fully, interrogate our employees as to their union
activities or interrogate our employees in opinion
surveys concerning their feelings with respect to
labor organizations or to any union seeking tb
represent them.
WE WILL rescind our no-distribution rule in the
employee handbook and the no-distribution rule
promulgated on April 10, 1970, as it applies to
union solicitation or other activities protected by
Section 7 of the Act.
WE WILL NOT in any like or related manner
974 DECISIONS OF `NATIONAL: LABOR RELATIONS BOARD
interfere with, restrain, or coerce our employees
in the exercise of the rights to self-organization, to
bargain collectively through representatives of
their own choosing, or to engage in concerted
activities-for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
VEEDER-ROOT COMPANY,
ALTOONA DIVISION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting" and must not be
altered, defaced, or covered' by any other material.
Any questions concerning this notice or compli-
ance with its, provisions may be directed to the
Board's Office, 1536 'Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-444-2977.
'TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: The hearing in this
case was held on November 17 and 18, 1970, in Altoona,
Pennsylvania, pursuant to a charge duly filed and served,1
and a complaint issued on September 29, 1970. ` The
complaint presents questions as to whether the Respondent
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. In-its answer, duly filed, the
Respondent conceded certain facts with respect to its
business operations, but it denied all allegations that it had
committed any unfair labor practices.
At the hearing the,, General Counsel and the Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, and to file briefs. The parties
waived oral argument and on December 28, 1970, both the
General Counsel 'and the Respondent submitted able and
extensive briefs.2
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The, Respondent, a Connecticut corporation with its
principal office located in Hartford, Connecticut, is
1 The charge was filed on July 30, 1970.
a On the same date, the General Counsel submitted a motion to correct
the transcript in certain minor particulars . There being no objection to the
proposed corrections, an order correcting the transcript in accordance with
engaged in the manufacture, sale, and distribution of
counting,,, controlling, and recording devices with plants
and facilities in various States of the United States. Only its
plant located in Altoona, Pennsylvania, is involved in this
proceeding. The basic product manufactured at this facility
is a computer for gasoline pumps. Within the 12 months
preceding the issuance ,of, the complaint, a representative
period, the Respondent produced goods at its Altoona
plant valued in excess of $50,000 which it sold and shipped
directly to buyers located, outside the Commonwealth of
Pennsylvania. Upon the foregoing facts, the Respondent
concedes, and the Trial Examiner finds, that Veeder-Root
Company, Altoona Division, is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United, Steelworkers of America , AFL-CIO (herein
called - Steelworkers or Union), is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent's Altoona plant employed from„435 to
525 employees at all times material herein. In communica-
tions to the employees the ' Respondent has consistently
maintained that a union is unnecessary for their welfare or
benefit. Since the Altoona plant was opened ;in 1956
several organizational- campaigns have, been conducted,
among the employees. The Board held representation
elections for the employees in 1956, 1957, and 1964, all of
which the unions lost. The Steelworkers were involved in
both the 1956 and 1964 elections. In 1969 that Union
renewed its organizational campaign atthe' Altoona plant,
but it did not put forth an intensive effort to enlist the
support of the employees until the spring of 1970. It is the
campaign, during the latter period which is involved in the
present proceeding.
The General Counsel , contends that , during. the 1970
organizational drive, the Respondent violated, Section
8(a)(1) of the. Act, by various conduct,-including a.no-
solicitation and no-distribution rule, and by an opinion
survey which was instituted in dune of that year. The
General Counsel further alleges that during'the course of
the unionization drive, the Respondent discriminatorily,
and in, violation of Section 8(aX3), discharged employee
Dorsey Shaw. All of these allegations ' are denied by the
Respondent in their entirety.
B. The, Status of Benjamin and Edgar
The General Counsel alleged that 'Robert Edgar and
Arthur' Benjamin were ' supervisors within the meaning of
the Act. This was decried in the Respondent's answer, but
,at the hearing, the Respondent, apparently, abandoned'this
position .3 Thus, when on the stand, Donald 'Rutherford,
the personnel director, testified that Benjamin was the
the aforesaid motion was issued on February 2,11971.
3 In its answer the Respondent conceded the supervisory status of
Richard Hamlin, plant manager, Donald Rutherford, the personnel
director, and Kenneh E. Suter, head of the product control department.
VEEDER-ROOT COMPANY
supervisor of the expediting group and the stockroom and
that, in this capacity, he had the authority to direct
employees, temporarily transfer them, write up warning
sheets, prepare job performance evaluations, and effective-
ly recommend hiring and firing. Rutherford further
testified that Edgar had substantially the same authority as
Benjamin . In a document which the Respondent offered in
evidence4 Benjamin is listed, during the period in question,
as a foreman and Edgar as a group supervisor. Edgar
himself testified that he had the title of shipping supervisor.
On the basis of the foregoing facts, the Trial Examiner
concludes and finds that Benjamin and Edgar were both
supervisors within the meaning of the Act.
C. The Alleged 8(a)(1) Violations; Findings and
Conclusions With Respect Thereto
In the spring of 1969,` the Steelworkers initiated a
campaign to organize the Respondent's employees. This
effort, however, was somewhat short-lived and it was not
until April 1970 that the aforesaid Union launched a full-
scale organizational drive.' Regius Dougherty, staff repre-
sentative for the Steelworkers, assisted by John Reck and
Maggie Schaeffer, as temporary organizers, thereupon
launched a full-scale drive to enlist the support of, the
Respondent's employees.5
On April 10, Reck and the other organizers distributed
leaflets at the plant gates which urged the employees to
join the Steelworkers to, insure their future. There was an
immediate response from the management. That afternoon
Plant Manager Hamlin sent a letter to all of the employees
wherein he described the appeal in the Steelworkers
pamphlet as the "same old propaganda that the organizers
have peddled without success for years." He concluded his
letter with the statement that "We have made a great deal
of progress in the fourteen years that we have worked
together at Veeder-Root without a union-and we don't
need outsiders to try to tell us how to do it." That same day
the Respondent posted a no-solicitation, no-distribution
rule on the plant bulletin board.
On or about April 13 the Respondent's supervisory staff
met with corporate officials and its counsel briefed them
on the conduct that would have to be maintained by them
throughout the Union's organizational drive in order that
the Respondent not collide with the proscriptions of the
Act. Each of those present was supplied with a checklist of
"do's and dont's" which set out the conventional examples
as to what supervisors could and could not say on the
subject of'unions.
From May'through July the Union engaged in extensive
pamphleteering at the plant gates. After the middle of
May, the three above-named organizers for the Steelwork-
ers distributed printed letters and appeals to the Respon-
dent's employees almost every week. Various employees
assisted them in' this effort, one of the principal ones being
Dorsey Shaw, a member of the Union's "in-plant organiz-
ing committee." Shaw and others assisted the Union in
securing signed authorization cards from the employees in
4 Resp. Exh. 5.
5 All dates hereinafter are for the year 1970, unless otherwise specifically
noted.
6 Sandrus also testified , credibly and without contradiction , that some
975
the plant and distributed the union campaign material to
their coworkers at lunch periods and during breaktimes.
The management took an active interest in the progress
of the Union's campaign efforts. According to Personnel
Director Rutherford, he asked that the supervisors keep
him informed as to-the progress of the organizational drive
and they complied. Supervisor Robert Edgar testified that
Rutherford asked him to make reports on the Union's
progress and that he did so.
Employee Shaw testified that during the month of May,
Supervisor Robert Edgar approached him at work and
questioned him as - to the Union. Both Shaw and Jack
Sandrus, another employee who was present, testified that
Edgar asked Shaw how the Union was progressing, how
many authorization cards had been secured, and where the
Union was holding its meetings 6
On or about June 9, the union organizers distributed
another set of leaflets to the employees as they entered the
plant. Shaw testified that, when the employees in the
stockroom were, discussing this development, Foreman
Arthur Benjamin asked- that Shaw go to the plant gate and
secure some copies of the leaflet for him. According to
Shaw, in compliance with this request, he took one of the
company vehicles and drove to the- -entrance where he
obtained several pieces of the -union literature and
thereafter gave them to Benjamin . Shaw's account of this
incident was credible and it was neither denied nor
contradicted by Benjamin.
About the middle of July the ' Union mailed to all
employees who had signed cards ' a news letter in which
Organizers -Daugherty, Beck, and Schaeffer set forth the
results of the organizational campaign` and exuded enthusi-
asm about the prospects of winning a ' Labor Board
election. Sandrus testified that, after he received this letter,
Supervisor Edgar, sought to secure a copy from him.
According to Sandrus, Edgar told him that Plant Manager
Hamlin would like to read it. When it appeared that the
letter was at Sandrus' home, Edgar asked the employee to
call his wife about the matter so-that Edgar could proceed
to 'Sandrus' house and secure it from her. Sandrus testified
that he declined to adopt this suggestion and refused to
supply the correspondence to the supervisor.
Edgar conceded that he told Sandrus that, he would
appreciate seeing copies of the union literature. He denied,
however, having engaged in the interrogation which Shaw
and Sandrus attributed to him. Edgar's ' denial in this
connection was not convincing, whereas Shaw and
Sandrus, more particularly the latter, were completely
persuasive. Accordingly, it is the conclusion of the Trial
Examiner that the two conversations with Edgar occurred
in substantially the manner that the employees testified.
On June 15, the Respondent announced to its employees
that on'the following day it would conduct an opinion
survey at the Altoona plant. The next day all of the hourly
paid employees, supervisors, weekly salaried personnel and
department managers were divided into small groups and
thereafter, throughout the course of the day, these groups
months earlier in 1969 Edgar told him that Personnel Director Rutherford
asked that he forward any news about the union campaign then in progress.
According -to Sandrus, thereafter Edgar asked that he pass along
information about the Union but he refused to do so.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took turns going to a conference room where they were
required to ;complete an extensive written questionnaire.
The questionnaire- had 36 questions which required the
employee to set forth his views on various phases of the
Company's personnel practices, supervisory policies, and
working conditions. Seven of these questions required- the
employee to write out the answers. The remaining
questions were completed by checking an appropriate box.
No. 12 required the employee to check a "Help" or `.`Hurt"
box in response to the question "Do you think a union
would help or hurt this plant?" No. 13 required- the
employee to explain, in writing, his answer to the preceding
question. No. 23 required the employee to check a "Yes"
or "No" box in response to the question "Do ,you think
that a company which treats people fairly and pays well
needs a union?" and No. 24 had space for the employee to
write out an explanation for the answer given to No. 23.
The foregoing canvass of the employees was conducted
by a consulting firm which the Respondent engaged. At the
hearing; and in its briefs, the Respondent, has contended
that the answers were completely confidential and that
there was no way in which it could identify those who filled
out the questionnaires. It is true that the questionnaires did
not require the employees to give their names and the
forms ,were not signed. However, the participants were
required to write their department name -or group number
on the first page and indicate whether a male or female was
completing it. Since, as indicated earlier, several of the
questions required the individual to write out explanations
in his own hand, there is some basis for the General
Counsel's contention that the authorship of any particular
response was not difficult to ascertain. Thus,, Robert, W.
Himes, an inspector and one of the employees who
participated in the survey, testified that the supervisor in
his department was well acquainted with the handwriting
of the individual employees under him and frequently had
identified an unsigned work report by examining the
handwriting, of the inspector who had prepared it.
Subsequent to the date on which the above-described
testing was completed, the Respondent made a series of
announcements which emphasized that the responses were
being closely scrutinized. On June 18, in a bulletin board
notice, Plant Manager Hamlin thanked the employees for
their participation. Ina letter, dated June 30, Hamlin wrote
the employees that the results of the survey were being
reviewed and that a report on it would be mailed to their
homes and discussed in departmental meetings. On August
26, the Respondent sent, to each employee an eight-page
letter, wherein it discussed the results of the survey at
length. Under the heading "What you think about Unions"
the letter stated, inter aliq;
Although some people said they think a union would
help at our, plant, you overwhelmingly agreed (81%)
that there is no need for a union where people are
treated fairly and paid well.
The Respondent had conducted opinion surveys on three
7 In 1957 the International Association of Machinists conducted an
organizational campaign at the Respondent's plant, but lost a representa-
tion election conducted by-the Board.
8 It is no defense for-the Company to assert, as it does in its brief, that its
supervisors had been carefully briefed as to the limits of their authority at
the outset of the Union's campaign and that, insofar as they exceeded the
previous occasions, viz, in 1957, 1959, and 1964. In prior
years, however, only the 1957 survey solicited the employ-
ees' views on unions.?
Concluding Findings
1. Interrogation
The interrogation of employee Shaw by Supervisor
Edgar wherein the latter asked how the union. campaign
was progressing, how many authorization cards' had been
signed, and where the union meetings were held went
beyond the permissible limits of free speech protected by
Section 8(c). These questions by a supervisor have been
held to violate the Act. Under the circumstances in which
Edgar asked them of Shaw, the Trial Examiner concludes
and finds that by such interrogation the Respondent
violated Section 8(a)(1) of the Act. Webb Tractor, and
Equipment Company, 167 NLRB 383, 384; Murray Manu-
facturing Company, 155 NLRB 239, 240.8
2. The opinion survey
The Respondent contends that the employee survey was
a legitimate management tool, designed to ascertain the
effectiveness of its personnel policies and enable it to make
improvements based on the results of a confidential poll.
Notwithstanding the Respondent's contention that, since
the results were unsigned, the confidentiality of the survey
was maintained, there were several aspects of the way in
which it was conducted that made possible' matching the
completed questionnaires with names of the employees.
The sex of the employee as well as the department or group
number of the individual had to be disclosed on the face of
the questionnaire. More significantly, the fact that several
of the questions required handwritten discussion-type
answers made it possible for the Respondent, had it been
so disposed, to have its supervisors attempt,an,identifica-
tion of the individual questionnaires by, a study of the
employees' handwriting.
Of the 36 questions on this survey, only 7 required hand-
written responses. Two of these seven questions were on
whether "a union would help or hurt this plant" and
whether "a company which treats people fairly, and pays
well needs a union." Since these questions were being
asked ' at the height of the Union's organizing ' campaign,
many of the employees must have felt, or could have felt,
that they were being asked, in substance, "Are you in favor
of the Steelworkers as your bargaining agent - at the
Altoona plant?" The Board has held that a poll' of
employee sentiment is permissible only if certain well-
defined safeguards are satisfied. Thus, in Struksnes
Construction Co., Inc., 165 NLRB 1062, 1063, the Board
held,
Absent unusual circumstances, the polling of employ-
ees by an employer will be violative of Section 8(a)(1)
of the Act unless the following safeguards are ob-
scope of those instructions, the Respondent cannot ^ be held liable. The
Board has held many times that , unless the employer in such a situationas
presented here openly disavows such conduct on the part of a, supervisor, it
,pnrent Company, 167must answer for such actions. Webb Tractor and Equi
NLRB 383, 384.
VEEDER-ROOT COMPANY
served: (1) the purpose of the poll is to determine the
truth of a union's .claim of majority, (2) this purpose is
communicated to the employees, (3) assurances against
reprisal are given, (4) the employees are polled by
secret ballot, and (5) the employer has not engaged in
unfair labor practices or otherwise created a coercive
atmosphere.
In the present case there had been no demand for
recognition and the, Steelworkers had made no claim to
having majority status. The Respondent gave no assur-
ances against reprisal, and it did not poll the employees by
secret ballot, bug rather in an open conference room and in
a manner that permitted the subsequent identification of
those who explained their answers in writing. Finally, the
Respondent presented no evidence that unusual circum-
stances existed which would justify an exemption from the
Struksnes rule and permit it to poll the employees as to
their union sentiments in the middle of the Steelworkers
organizational campaign. For this reason, the Trial
Examiner concludes and finds that, insofar as the' opinion
survey compelled the employees to disclose their union
sentiments, it violated Section 8(a)(1) of the Act.
3. The no-solicitation, no-distribution rule
The Respondent's Employee Handbook contains a
comprehensive statement of its ' personnel policies and
practices. Personnel Director Rutherford testified that,
since he assumed his present post in 1968, a copy of this
handbook, has been issued to each new employee and its
contents discussed fully with each one. The Employee
Handbook has the following provision on solicitations and
distributions:
Using working time to seek, solicit, or enroll members
in any organization is not permitted, and the posting,
distribution or circulation of pictures,, notices, publica-
tions or literature in the plant or any building occupied
by the Company is not permitted at any time.
Another section of the handbook establishes two classifica-
tions for breaches of the plant rules. The first category lists
actions which are labeled as mere "violations of rules" that
will, for a first offense, precipitate a warning. The second
group, denominated as "actions ... considered as
intolerable," puts soliciting memberships and distributing
literature in a category that includes stealing, falsifying
timecards , drinking on the job, and various other offenses
of similar gravity. The handbook provides that "Action
considered intolerable . . . may cause immediate dismiss-
al"
As found earlier, herein, on the afternoon of April 10,
1970, the day that the Union first distributed organization-
al leaflets at the plant gates, Plant Manager Hamlin sent a
letter to the employees in which he reiterated the
Respondent's opposition to a union and urged the
employees not to sign up with the Steelworkers. That' same
day, Hamlin posted the following ' notice on the plant
bulletin boards:
Employees are reminded that violation of the
following Company rules' shown in our Employee
Handbook can result in immediate disciplinary action,
including dismissal:
977
(1) Using working, time to seek, solicit or enroll
employees in any organization, is prohibited.
(2) The posting, distribution or circulation of pictures,
notices, petitions or literature in working areas of the
plant or any building occupied by the Company is
prohibited at all times.
The Board has held that, absent unusual circumstances,
the distribution of union literature may not be forbidden
during nonworking time in nonworking areas of the plant.
N.L.R.B. v. Walton Manufacturing Company, 289 F.2d 177,
180-181 (C.A. 5) Stoddard-Quirk Manufacturing Co., 138
NLRB 615, 616-623; Mallory Capacitor Company, 162
NLRB 1404, 1406-7, enfd. as to this point 389 F.2d 704,
709-710 (C.A. 7). Here the rule on distribution which
appears in the employee handbook forbids the distribution
of literature in the plant "or any building occupied by the
Company .. . at any time." The notice to employees that
was posted on April 10 modifies this total prohibition
which appears in the handbook by the insertion 'of the
clause "in working areas" before the words "of the
plant.... " The bulletin board notice, however, would
still appear to prohibit the distribution of literature in
nonworking areas of "any building occupied by the
Company." The handbook provides that a violation of the
no-distribution rule may cause immediate dismissal. This
penalty is reiterated in the posted notice of April 10. In its
brief, the Respondent contends that a fair reading of the
aforesaid rules would enable the employees to know that
distribution of union literature is permitted in nonworking
areas of the plant or in any building occupied by the
Company. That, however, is by no means apparent from a
study of the version which was posted after the Union's
organizational campaign began. Most particularly is this
true in view of the fact that the handbook rule prohibiting
distribution on company premises "at any time" was never
rescinded and, presumptively, still remained in effect along
with the drastic penalty of dismissal for its violation. In
any event,;it has been held that "the risk of ambiguity must
be held against the promulgator of the rule rather than
against the employees who are supposed to abide by it."
N.L.R.B. v. Miller, et at., 341 F.2d 870, 874 (C.A. 2), enfg.
148 NLRB 1579. Here, as was stated by the Board in a
recent case, Farab Manufacturing Company, 187 NLRB No.
83:
... the terms-of-the rule as stated, ready be
understood as prohibiting the distribution of union
literature by, employees on their own time in any part
of the plant premises, including nonworking areas,
during the course of the working day.
The Respondent offered no evidence to establish that
unusual circumstances existed in its plant which would
justify an exception to the Board's often restated rule on
the distribution of literature. Consequently, the Trial
Examiner concludes and finds that the Respondent's
prohibition on the distribution of literature in nonworking
areas on nonworking time violated Section 8(a)(1) of the
Act.
The Respondent's prohibition of solicitation during
working time is presumptively valid on its face. As, the
Board stated in an early case, many years ago, ".working
time is for work," Peyton Packing Company, 49 NLRB
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
843-844, enfd. 142 F .2d 1009 (C.A. 5). However, it is
significant that the Respondent's repromulgation of this
rule on April, 10, at the very outset of the Union's renewal
of its organizational campaign , was accompanied by a
letter to^ the employees from Plant Manager Hamlin in
which the latter set forth the Respondent's determined
opposition to labor organizations generally and to the
Steelworkers in particular . Under these circumstances, it is
apparent- from the timing that an object of the Respondent
in repromulgating its rule on solicitation was to deter the
employees from participating in the Union's organizational
campaign . Consequently , the Trial Examiner finds that
here the Respondent violated Section 8(a)(1) of the Act by
its repromulgation for an unlawful purpose of an otherwise
valid rule against solicitation on working time . Ridgewood
Management Company, Inc. v. N.L.R.B . 410 F .2d 738, 740
(C.A. 5); William H. Block Company, 150 NLRB 341,
342-343 ; Ward Manufacturing, Inc., 1,52 NLRB 1270, 1271;
Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527, 528-529.
D. The Alleged 8(a)(3) Violation; Contentions of
the Parties; and Findings and Conclusions With
Respect Thereto
Dorsey Shaw was first employed by the Respondent in
1957. Thereafter he worked continuously at the Altoona
plant until he was terminated on July 24, 1970. At the time
of his discharge he was classified as a truckdriver and had
been so engaged for several years.
' Shaw signed a card in the Steelworkers in April 1969
when that Union initiated its organizational activity. In
April 1970, when the Steelworkers resumed its attempt to
organize the Respondent's employees, Shaw 'signed anoth-
er authorization card . As the campaign progressed, Shaw
took an active part in the Union 's efforts to contact the
employees . He was designated by the Union to serve on its
"In-Plant Organizing Committee" and was one of its
principal contacts with the employees . As found earlier, on
April 10, the Union began its handbilling at the plant gates.
Much of this was conducted by Daugherty , Reck, and
Schaefer, the three organizers for the Steelworkers, as the
work, force reported for duty at 7 a,m., or when it left the
plant that afternoon. Shaw worked in the service depart-
ment, of which Arthur Benjamin was the foreman. The
employees in this department did not start work until 8
a.m. each day, or an hour after the rest of the work force
had gone on duty. Consequently, the Union relied on Shaw
to pass out-its handbills to his associates in the service
department. Shaw testified , credibly, that on those morn-
ings when the organizers were passing out organizational
leaflets and notices of meetings he' secured a supply of the
literature from Reck at the plant gate when he was coming
on duty and thereafter during the day, at breaktimes and
during the noon hour, he distributed the leaflets to, his
coworkers . During the month of May some of the
employees wore Steelworkers buttons while at work. Shaw
testified that on one of the occasions when he was wearing
such a button he spoke to Foreman Benjamin . Shaw's
testimony in this regard was credible and undenied.9
Benjamin was not called as a witness.
io See, for example, the testimony of employees D. Gary Fox, Jack
Shaw solicited many of his coworkers to sign authoriza.
tion cards . He testified that he secured about 75 - signed
cards from his fellow employees. This was confirmed by
Reek, who also testified that the large number of
authorizations which Shaw obtained constituted almost 25
percent of the total received by the Union throughout the
organizational campaign . Several of the employees testified
as to Shaw's identification with the Union , the frequency
with which he passed out leaflets for the Steelworkers,, the
notices which he gave them of union meetings, and the
various other ways in which he acted ' as a source of
information on the progress of the Union's organizational
drive . Several of these witnesses described him as the "head
union pusher" in the plant.10
Earlier herein, it was found that during May, Supervisor
Edgar questioned Shaw about the union campaign, the
number of cards ' which had been secured, and where the
Steelworkers were holding their meetings . Carrie Sorge, an
employee in Edgar's section, testified that during break-
times and the noon hours she and her coworkers frequently
discussed the Union and Shaw's participation in the
organizational campaign . She further testified, credibly,
that Edgar was, present on some of the occasions when
Shaw's union activities were the subject of conversation
among these employees.
At the hearing , Edgar and Personnel Director Ruther-
ford denied any knowledge of Shaw's efforts on` behalf of
the Union . These denials, however, were not credible. As
found earlier herein , in May, Edgar singled out Shaw to
question him about the Union °in a manner which quite
obviously presupposed Shaw's identification with the
Steelworkers organizational drive. On another occasion,
when Shaw was wearing a union button while talking with
Foreman Benjamin, it' was most unlikely that this symbol
could have gone unnoticed by Benjamin ' during the course
of the , conversation about which Shaw testified; Finally the
obvious and ' intense interest which 'die' Respondent
displayed in the Union's campaign, manifested by Plant
Manager Hamlin 's response on April 10 to the Union's
first leaflet which had been distributed that very day, the
republication of the Respondent's unlawful no-solicitation,
no-distribution rule on that ' same day, the Respondent's
resort to an unlawful employee opinion survey in June, the
Company's continuing countercampaign of letters to the
employees wherein it gave its answers to the Union's
claims and promises ,,and the testimony that foremen such
as Benjamin and Edgar as well as , Personnel Director
Rutherford sought to secure copies of the Union 's leaflets
as soon as they were distributed , make it evident to the
Trial Examiner that the Respondent 's management had the
union activities , of its employees under a close and
continuing scrutiny. At the same time, Shaw's own account
of the extent to which he participated in handbilling3 card
solicitation and other promotional efforts on behalf Of the
Steelworkers was fully corroborated by the, testimony of
many other employees . In view of these findings,,which are
all well supported by the testimony in the record, the Trial
Examiner concludes that , long before Shaw's termination,
Sandrus, Robert W . Himes, and Carrie Sorge.
VEEDBR-ROOT COMPANY
the Respondent was aware of his identification with the
Steelworkers campaign.
Shaw was discharged on the afternoon of July 24. To the
events which preceded his termination on that day we will
now turn.
About 11:25 on July 24 and only a few minutes before
the noontime lunchbreak, a group of employees in the
stockroom were engaged in a discussion as to whether the
Company should follow seniority in making temporary job
assignments . Among those participating in the discussion
were Shaw, several other male employees, and Eugene
Dodson, the head stock clerk. The latter maintained that,
insofar as temporary work was concerned, the supervisor
customarily had complete discretion to make job assign-
ments without reference- to seniority. Shaw stated his
vociferous opposition to this point of view. At that time,
Ola Burket, a young lady employed as the steno receiving
clerk for the stockroom, joined in the conversation and
spoke out in support of the position which Dodson had
taken. According to his own testimony, Shaw felt that
Burket had intruded in the conversation and he reacted
violently to her comments. Shaw testified that he there-
upon told Burket that she should return to her desk. He
conceded that he also told her that, in so doing, she could:
brown nose [Foreman] Benjamin like she always
has, and ... the second thing, you never had no time
for Gene Dodson until he made head stock clerk, and I
said all you do is brown nose Gene Dodson.
Later in the hearing Burket was called as a witness for the
Respondent. She testified that Shaw's outburst' was
considerably more profane and vulgar than he acknowl-
edged at the hearing. According to her, Shaw angrily
declared that she should "get to hell over to [her] desk"
and that he was tired of her "brown nosing and ass
kissing." Dodson corroborated Burket's testimony when he
was on the stand. Shaw denied that he had used any
language stronger, than that which appeared in the
quotation from his testimony which is set forth above, but
his denial was- not convincing. Burket and Dodson, on the
other hand, were far more persuasive and on the basis of
his observation of these witnesses at the time they appeared
and testified, it is the conclusion of the Trial Examiner that
Burket gave a substantially accurate account of what Shaw,
said at the time in question.
At 11:30 the bell rang for the noon hour lunchbreak and
the employees went their separate ways. Shaw and Dodson
went to the cafeteria and while, at lunch, the latter
suggested that Shaw should apologize to Burket for what
he had said, or at least tell her that his remarks had been
made in jest. After lunch Shaw did go to ..Burket's work
station and spoke to her. According to his own testimony,
he stopped at Burket's desk and called out "... let's kiss
and make up, babe. . . ." It was apparent, at the time he
testified that what Shaw said to Burket and the manner
and tone in which he said it were hardly calculated to pass
for an apology or to, be accepted as such. Even from
Shaw's testimony, it is evident that after he made this
casual comment, Burket was further incensed. According
11 The quotation is from Rutherford's testimony. However,. Shaw's
testimony as to this occasion attributed to Rutherford almost the same
identical words.
979
to Shaw, "Ola got very bitter about it, she said just forget it
... you will hear about it." Burket testified that after
Shaw briskly declared "are we ready to kiss and make up
" she told him she would rather not talk about it.
According to Burket, he then told her that he could take all
the men in the stockroom to Rutherford's office and prove
to the personnel director that what he had said about her.
had been true.
About 3 p.m. that day, Shaw was summoned to
Rutherford's office. There he was confronted by Foreman
Benjamin and the personnel director. The latter opened the
conversation with the comment to Shaw ". . . well, I guess
that you have done it this time . . ." 11 and then asked the
employee to give his account of what had happened that
morning. After Shaw had done so, Rutherford thereupon
told the employee that Dodson and Burket had related to
him the details of what had occurred and that on the basis
of what they told him, he had taken the matter up with
Plant Manager,Hamlin and the corporate headquarters in
Connecticut. According to Shaw, Rutherford told him that
the decision had been made to discharge him for profanity.
Rutherford's account of this exit interview was in substan-
tial ,accord with that given by Shaw. The personnel director
also added, however, and his testimony in this regard was
credible, that he told Shaw that "the decision [to discharge
him] had been made . . . because of his previous record
built up over a period of . . . years. . . ."At the conclu-
sion of the meeting Shaw was given a check for his current
pay and two others for various vacation rights to which he
was entitled.
Several days after his termination, Shaw returned to the
plant and asked Rutherford for a letter which would set
forth the reason for his discharge. The personnel director
promised that he would write such a letter,, but, after the
lapse of several days without hearing from him, Shaw
returned to the plant, sought out Rutherford again and
renewed his request. At that time Rutherford told Shaw
that he himself would not write the letter but that Shaw
would receive the desired letter from the corporate
headquarters in Hartford, Connecticut. At the time of the
hearing Shaw had still not received such a letter. He did,
however, get a letter from Foreman Benjamin, dated July
27, wherein his supervisor recommended him to any,
prospective employer as an employee who "displayed great
ability to get a job done."
At the hearing, Rutherford conceded that under normal
circumstances an employee would not be terminated for
the use of profanity common to an industrial- shop. The
General, Counsel presented several witnesses who testified',
as to the prevalence of a wide variety of obscene
vulgarisms which, according to -the employees, was
common to the vocabulary used in the plant and which
had never resulted in the supervisors taking any discipli-
nary action.12
Whereas Shaw had been an employee for almost 13 years
at the time of his discharge, his employment record was not
unblemished. His complete personnel file was offered and
received in evidence. This disclosed that during the period
12 See, for example, the testimony of Carrie Sorge, D. Gary Fox, Jack
Sandrus, and Robert W. Rimes.
980 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
from 1957 to the early part of 1969 he-had received various
admonitions and one disciplinary layoff, but that his pay
had steadily increased from about $2 per hour to $2.81 an
hour., On several occasions in 1969, however, Shaw was
disciplined. In April of that year his supervisor, Jack
Hancock, charged him with prpfanity toward his foreman
and with insubordination. Hancock took Shaw to the
personnel office and Rutherford warned Shaw that he
would be given one last chance to change his attitude.13
Early in June 1969 Shaw had further difficulties with
Supervisor Hancock. Rutherford testified that in this
instance be recommended to the plant manager, a Mr.
Bathurst, that, in accordance with the last warning issued
to Shaw in April; the employee should be discharged at
once, but that Bathurst disagreed and no further action
was taken. According to Rutherford, only a few days later,
and on June 11, 1969, Hancock submitted another warning
notice 14 on ' Shaw, and, again, as personnel director, he
recommended to Bathurst that the employee be dismissed.
Rutherford testified, however, that the' plant manager
overruled him again and Shaw remained on the payroll. On
January 5, 1970, Shaw received a 14-cent-an-hour raise,
notwithstanding 'a notation by Supervisor Hancock on his
employee' performance report that Shaw had been warned
of continual tardiness.
In his brief the General Counsel contends that Shaw's
caustic remark,to Burket was no different from comments
frequently heard in the plant, and that the real reason for
his dismissal was Shaw's prominence in the organizational
campaign.
The prime consideration, of course, is whether, in
arriving at its determination to discharge Shaw, the
Respondent was in any way motivated by a desire to
penalize him for his activities on behalf of the Steelwork-
ers. It is well settled that "A justifiable ground for dismissal
is no defense if it is a pretext and not the moving cause."
N.L.R.B.'v. Solo Cup Company, 237 F.2d-521, 525 (C.A. 8)
Earlier herein it was found that Shaw was one of the
employee' leaders in the union movement and that the
Respondent had knowledge of his activities. He was a
long-time employee with almost 13 years of service and his
work record was satisfactory in many ways, as evidenced
by a series of modest wage raises he received during the
period 'of his employment. At the same time he had' also
incurred the displeasure of his supervisors-on more than
one occasion and in 'April 1969 he had received from the
personnel, director what even he conceded to be a "last
warning." Notwithstanding two other incidents which
subsequently occurred in 1969 and for which Personnel
Director Rutherford recommended his termination, Shaw
was not fired because the plant manager, for reasons that
do not appear in the record, declined to adopt Rutherford's
advice. On July 24, 1970, when Shaw was involved in
another incident and a new plant manager was on the
scene, Rutherford recommended Shaw's discharge and this
time his advice was followed.
Shaw's comments to Burket, as found above, may very
13 At the hearing Shaw conceded that what he had been given on this
occasion was "my last warning,"
14 These were called employee performance reports.
15 N.L.R.B. v. Soft Water Laundry, Inc., 346 F.2d 930,934-936 (C.A. 5);
well have been of a type common to the parlance of their
coworkers. At the same time they could certainly be
considered offensive, particularly when,, as appears, from
all the evidence here, they were delivered by, Shaw in -an
insulting and bellicose manner. When Dodson, the head
stock clerk , urged Shaw to apologize to Burket , or at least
endeavor to explain away the remarks as -having been
uttered facetiously,- Shaw chose instead, when bringing up
the subject with •Burket,. to adopt an attitude which only
antagonized her further. Burket may,have been unduly
sensitive, but she was, unquestionably, -offended and she
chose to make an issue of Shaw's performance by -reporting
the matter to the management . When it reached that level,
Rutherford, who twice before in the preceding year had
recommended Shaw's, dismissal, - again recommended
Shaw's termination. This time, under a new plant manager,
his-recommendation was adopted.,
As the Board stated in another case, "Cornett was a
union leader, and the Respondent, may well have wel-
comed,the opportunity of getting rid of him, but neither his
activities nor the Respondent's attitude gave him privileges
greater than those of other employees." Lloyd A. Fry
Roofing Co., 85 NLRB 1222, 1224.15 In view of the above
findings,, it, is the conclusion of the Trial Examiner, on this
record, that the General Counsel has not established by a
preponderance of the evidence that Shaw was terminated
discriminatorily. Accordingly, it will be recommended that
the complaint be dismissed insofar as it alleges that the
Respondent's termination of,Shaw violated Section 8(a)(3)
and (1) of the Act.
CONCLUSIONS of LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the'meaning of the
Act.
2. By engaging in interference, restraint, and coercion,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaningof-Section 8(a)(1) of the
Act. -
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of
Section 2(6) and (7) of the Act.
4. The discharge of Dorsey Shaw was not a violation of
Section 8(a)(3) and (1) of the Act as alleged by the General
Counsel.
DY
Having found that the Respondent has engaged in
certain unfair labor practices, - the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and take, certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings' and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the,
Trial Examiner hereby issues the following recommended:
Frosty Morn Meat, Inc. v. N.LR.B., 296 F.2d 617,620-621 (C.A. 5);,Klate
Holt Company, 161 NLRB 1605, 1607=12; Florida Steel Corp., 132 NLRB
1110, 1114-18; see also: The Princeton Inn Company, 174 NLRB No. 181.
VEEDER-ROOT COMPANY 981
ORDER16
Respondent, Veeder-Root Company, Altoona Division,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively, or otherwise unlawfully, interrogating its
employees as to their union activities, or interrogating its
employees in opinion surveys concerning their feelings
with respect to labor organizations or as to any union
seeking to represent them.
(b) Discriminatorily promulgating or enforcing a rule
prohibiting employees from soliciting or distributing
literature on'behalf of a union.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization, to -bargain collectively through repre-
sentatives of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid, or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in See.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all , objections thereto shall be
deemed waived for all purposes. .
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court ofAppeals, the words in the notice reading "Posted by
(a) Rescind its no-solicitation , no-distribution rule in the
employee handbook and the no-solicitation, no-distribu-
tion rule posted on April 10, 1970, as it applies to union
solicitation or other activities protected by Section 7 of the
Act.
(b) Post at its plant in Altoona, Pennsylvania, copies of
the attached notice marked "Appendix." 1T Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by the Respondent's
authorized representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of the receipt of this Decision,
as to what steps the Respondent ` has taken to comply
herewith.'8
It is also ordered that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board:-
18 In the event that this recommended Order is adopted by the Board
after exceptions ' have been filed , this provision shall be modified to read:
"Notify, the said Regional Director, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."