Walton Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 18, 1960

126 N.L.R.B. 697 (N.L.R.B. 1960)

WALTON MANUFACTURING COMPANY 697
Walton Manufacturing Company and Amalgamated Clothing
Workers of America , AFL-CIO. Case No. 10-CA-4093. Feb-
ruary 18, 1960
DECISION AND ORDER
On September 16, 1959, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. He found further that it was
unnecessary to decide whether the Respondent had engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal of those allegations. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.
The, Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions.
1. The Trial Examiner found, and we agree, that Respondent vio-
lated Section 8 (a) (1) of the Act by promulgating a no-solicitation
rule applicable to its employees, which was not limited to their work-
ing time.
In its brief, Respondent contends that this finding represents an
erroneous interpretation and application of the law with respect to
no-solicitation rules, as laid down by the Supreme Court of the United
States in the Republic Aviation, Babcock ct Wilcox, and Nutone
cases. ' We disagree. Thus, as we' interpret these decisions of the
Supreme Court, they establish the following rules of law with respect
to employer no-solicitation rules :
1. No-solicitation or no-distribution rules which prohibit union
solicitation or distribution of union literature on company property
by employees during their nonworking time are presumptively an
unreasonable impediment to self-organization, and are therefore pre-
sumptively invalid both as to their promulgation and enforcement;
however, such rules may be validated by evidence that special circum-
stances make the rule necessary in order to maintain production or
discipline.2
'Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793; N.L.R.B. v. The Babcock &
Wilcom Company, 351 U S. 105; N.L.R B. v. United Steelworkers of America, CIO, Peti-
tioner ( Nutone, Inc., Intervenor ), 357 U.S. 357.
2 Republic Aviation Corporation v. N.L R.B., supra, where the Supreme Court stated
that "'We perceive no error in the Board 's adoption of this presumption." See also
N.L.R.B. v. The Babcock & Wilcom Company, supra, where the Supreme Court reaffirmed
126 NLRB No. 93.
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. No-solicitation or no-distribution rules which prohibit union
solicitation or distribution of union literature by employees during
working time are presumptively valid as to their promulgation, in the
absence of evidence that the rule was adopted for a discriminatory
purpose; 3 and are presumptively valid as to their enforcement, in
the absence of evidence that the rule was unfairly applied.'
3. No-solicitation or no-distribution rules which prohibit union
solicitation or distribution of union literature by nonemployee union
organizers at any time on the employer's property are presumptively
valid, in the absence of a showing that the union cannot reasonably
reach the employees with its message in any other way, or a showing
that the employer's notice discriminates against the union by allowing
other solicitation or distribution.5
In the instant case, the rule promulgated by Respondent prohibited
its employees from ". . solicitation of . . . memberships . . . or
circulation of . . . circulars and handbills" on company property, and
provided for "immediate discipline, including discharge" for violation
of the rule. Although the rule does not specifically state that the pro-
this rule by stating that "no restriction may be placed on the employees ' right to discuss
self-organization among themselves [ during nonworking time], unless the employer can
demonstrate that a restriction is necessary to maintain production or discipline Republic
Aviation Corporation v. N L.R B., 324 U. S. 793, 1803 "
8 Republic Aviation Corporation v N.L R B., supra, footnote 10.
It N L R B. v. United Steelworkers of America, CIO, Petitioner (Na tone, Inc, Inter-
venor), supra. In the Nutone case, the Supreme Court also indicated that the following
factors are relevant in determining whether "a valid rule has been fairly applied" :
(1) The employees must request the employer to make an exception to the rule for pro-
union solicitation , even though the employer is engaging in antiunion solicitation and in
effect violating the rule himself , because if the employer voluntarily offers the use of his
facilities and the time of his employees for proun'ion solicitation he subjects himself to
a possible charge of violation of Section 8(a) (2) of the Act; (2) because such a rule is
presumptively valid both as to promulgation and enforcement , the union involved has to
show that enforcement of the rule is an "unreasonable impediment" to organization In that
it cannot effectively carry its message to the employees in any other way. It should be
noted, however, as stated by the Supreme Court itself, that the only issue in that case was
whether there was unlawful enforcement of an otherwise valid no-solicitation rule appli-
cable to employees' working time ; and there 'is no indication that the Court was dealing
with or changing the rule it laid down in Republic Aviation, and reaffirmed in Babcock &
Wilcox , with respect to a nonworking time no-solicitation rule.
5 N.L.R B. v. The Babcock & Wilcox Company, supra, where the Supreme Court held
that "an employer may validly post his property against non-employee distribution of
union literature if reasonable efforts by the union through other available channels of
communication will enable it to reach the employees with its message and if the em-
ployer's notice does not discriminate against the union by allowing other distribution."
In so holding, the Court set forth the following rationale and rules : "Here the Board
failed to make a distinction between rules of law applicable to employees and those
'applicable to non-employees The distinction is one of substance . No restriction may be
placed on the employees ' right to discuss self-organization among themselves , unless the
employer can demonstrate that a restriction is necessary to maintain production or disci-
pline. Republic Aviation Corp. v N.L.R.B , 324 U. S 793, 803. But no such obligation is
owed nonemployee organizers . Their access to company property is governed by a dif-
ferent consideration . The right of self-organization depends in some measure on the
ability of employees lo learn the advantages of self-organization from others Conse-
quently, if the location of a plant and the living quarters of the employees place the
employees beyond the reach of reasonable union efforts to communicate with them, the
employer must allow the union to approach his employees on his property . No such
conditions are shown in these records."
WALTON MANUFACTURING COMPANY 699
hibition applies to the solicitation of union memberships or the dis-
tribution of union literature, it must be construed as having such
application, in view of its all-inclusive prohibition of "solicitation"
and "circulating," and its implied description of union solicitation
and distribution of union literature. Moreover, as the rule does not
purport in any way to limit the prohibition to working time, it must
be construed as also applying to the employees' nonworking time.
Accordingly, we have here a no-solicitation and no-distribution rule
applicable to employees during their nonworking time, which rule is
presumptively invalid, in the absence of evidence that special cir-
cumstances make the rule necessary in order to maintain production or
discipline. As Respondent introduced no evidence to show such spe-
cial circumstances, the rule is invalid.6 We find, therefore, in agree-
ment with the Trial Examiner, that Respondent's promulgation of
the rule was a violation of Section 8(a) (1).
4. The Trial Examiner found, and we agree, that Respondent's
simultaneous announcement of a management-employee committee for
"safety, sanitation, and advisory matters ," was also a violation of
Section 8 (a) (1) of the Act.
Respondent contends that this announcement was not a violation
of the Act, because : (1) It was only an announcement of a desire to
create such a committee in the future; (2) the purpose of the com-
mittee was simply to "improve safety, sanitation, and cleanliness for
the general welfare of the employees and the Company"; (3) as there
was no majority representative in the plant, Respondent was free to
enter into individual contracts with its employees that such a "safety"
committee be established; and (4) in order to prove a violation of the
Act, the General Counsel had to show that the committee was estab-
lished and existing.
With respect to contention (1), we note that the announcement
states that "There will be a joint Management-Employee Committee
for safety, sanitation, and advisory matters which will meet at least
once monthly," that "The purpose of this committee shall be to work
together" for certain purposes, that "The employee membership of
this committee shall consist" of certain employees, and that "The
representative from each department shall serve" a certain term "and
will then be succeeded" by another employee. [Emphasis supplied.]
In view of this positive and mandatory language of the announcement,
it is evident, contrary to Respondent's contention, that the announce-
ment represented not merely an expression of a "desire" to create the
committee described, but in the language of the announcement itself
0 Indeed, Respondent does not even contend that there were such special circumstances.
In view of the fact that such a rule is presumptively invalid, and Respondent intro-
duced no evidence to rebut such presumption , we find no merit in Respondent 's contention
that the General Counsel has not sustained his burden of proof to show that the rule
was invalid.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such committee "will" be created and meet at certain intervals,
and "shall" have certain purposes, representatives, and terms of office
for such representatives. As to Respondent's testimony that the
committee had not yet been appointed and had not met, we note that
the charge in this case attacking the legality of such a committee was
filed only a few weeks after the announcement, and that this may well
have been the factor which postponed the actual appointment and
operation of the committee. It remains clear, however, that the an-
nouncement represented a fixed intention on the part of Respondent
to set up such a committee which would be the only method of col-
,lective bargaining available to the employees, and as found below this
was the vice of the announcement.
As to contention (2), we find, as the Trial Examiner did, that
because the committee was "to work together to improve," among other
things, "the general welfare of the employees and the Company," and
so far as appears conditions of employment were the only matters of
common interest between management and the employees, and because
the part of Respondent's April 1959 notice to the employees dealing
with the committee appears in the middle of a "Magna Charta" of
employment covering everything usually set out in a collective-
bargaining agreement, the committee was intended to deal with con-
ditions of employment and was so understood by the employees,
despite the absence of any explicit reference to wages, hours,, or other
conditions of employment.
With respect to contention (3), it is true that in the absence of a
majority representative Respondent was free to deal directly with its
employes and to unilaterally establish their conditions of employ-
ment.7 This does not mean, however, that Respondent was free to
deprive the employees of their rights under Section •7 of the Act to
self-organization and to bargain collectively through representatives
of their own choosing, if the employees chose to exercise such rights
at any time. Accordingly, when Respondent in its April 1959 notice
to the employees made it mandatory, and in effect a condition of
.employment, that any collective bargaining that there might be must
follow certain procedures, with Respondent deciding who should be
the spokesmen for the employees, when and how they should meet,
and with Respondent paying the employee representatives for time
so devoted, Respondent interfered with such Section 7 rights, in
violation of Section 8 (a) (1) of the Act 8
As indicated by the Trial Examiner, there may be merit to conten-
tion (4) to the extent that the absence of proof that the committee
was actually established or came into existence may preclude a finding
that Respondent violated Section 8(a) (2) of the Act. However, the
7 J. I. Case Company v. N L.R.B ., 321 U.S. 332.
8 See N L.R.B. v . Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203.
WALTON MANUFACTURING COMPANY 7O1
absence of such proof does not preclude or in any way affect our find-
ing above that Respondent violated Section 8 (a) (1) by imposing a,
committee of its own creation upon its employees as their collective-
bargaining representative for any collective bargaining which they
might wish to engage in, and thereby interfering with their rights
to self-organization and to bargain through representatives of their
own choosing.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Walton Manufac-
turing Company, Loganville, Georgia, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from promulgating or enforcing a rule prohibit-
ing employees from soliciting membership in, or circulating circulars
and handbills on behalf of, any organization on company property,
and imposing upon employees, as a condition of employment, a
requirement that collective bargaining must proceed on the basis of
a labor organization sponsored, formed, or assisted by the Respondent,
or in any like or related manner interfering with, restraining , or coer-
cing employees in the exercise of their right to self-organization, to
bargain collectively through representatives of their own choosing, or
to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection ; or to refrain from any or all
such activities except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Distribute to each employee in its Loganville, Georgia, plant,
excluding all supervisory personnel, a written notice, over the name
of the Respondent and signed by its representative, advising them that
the rule prohibiting employees from soliciting membership in, or
circulating handbills on behalf of, any organization on company prop-
erty, as contained in part V of the notice distributed by Respondent
to employees on April 1, 1959, is rescinded, and also that any collective
9 Cf Molded Faber Glass Body Company, 119 NLRB 380, cited by Respondent, where
the Board held that it was not a violation of the Act for an employer to merely urge his
employees to use the services of a safety committee.
As pointed out by the Trial Examiner , it is unnecessary to decide in this case whether
Respondent 's conduct with respect to the committee was also a violation of Section
8(a) (2), because the remedy would be no different in effect from the appropriate remedy
for the Section 8 ( a) (1) violation found. Accordingly , and also because there is no
exception to the Trial Examiner's failure to find a violation of Section 8(a) (2), we do
not pass upon that issue
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining they may choose to engage in will not proceed on the
basis of the committee described in part II of that notice, that
employee participation in that committee is not a condition of employ-
ment, and that the employees are free to engage in collective bargain-
ing through any union of their own choosing, and post a copy of said
notice upon the plant bulletin board or boards.
(b) Post in the Respondent's plant in Loganville, Georgia, copies
of the notice aittached hereto marked "Appendix." 10 Copies of said
notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Respondent's representa-
tives, be posted by the Respondent, immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed to the extent that it alleges that the Respondent violated Sec-
tion 8 (a) (2) of the Act.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT promulgate or enforce a rule prohibiting our
employees from soliciting membership in, or circulating circulars
and handbills on behalf of, any organization on company
property.
WE WILL NOT impose upon our employees, as a condition of em-
ployment, a requirement that collective bargaining must proceed
on the basis of a labor organization to be sponsored, formed, or
assisted by the Company.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist any
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
WALTON MANUFACTURING COMPANY 703
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment in conformity with Section 8 (a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All our employees are free to become or remain, or to refrain from
becoming or remaining , members of any labor organization.
WALTON MANUFACTURING COMPANY,
I'mployer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard in Atlanta, Georgia, on August 13,
1959, before the duly designated Trial Examiner. The complaint alleges unlawful
conduct by Walton Manufacturing Company, herein called the Respondent, in viola-
tion of Section 8(a)(1) and (2) of the Act, all of which the Respondent denies
in its answer. All parties were afforded full opportunity to examine and cross-
examine witnesses, to introduce evidence, to present oral argument, and thereafter
to file briefs. Briefs were received from the General Counsel, the Charging Party,
and the Respondent and have been considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Walton Manufacturing Company is a Georgia corporation engaged in the manu-
facture of men's clothing, and at all times material herein has maintained its princi-
pal office and place of business in Loganville, Georgia. During the past 12 months,
which period is representative of all times material herein, Respondent sold and
shipped from its plant in Loganville, Georgia, directly to points located outside the
State of Georgia, goods and materials valued at more than $50,000. I find that
the Respondent is engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to assert jurisdiction in this proceeding.
II. THE UNFAIR LABOR PRACTICES
The charge and complaint in this case rest entirely upon an extended written
notice which the Respondent distributed to all its employees on April 1, 1959, in
which, among other things, it informed them of certain company rules of conduct
for the employees and of procedures to be followed by them in their dealings with
the Company. The General Counsel called no witnesses, but rested his case upon
a stipulation of facts, signed by all parties. Apart from the formal requirements
in support of the case, such as service of pleadings and jurisdictional facts, the
evidence sustaining the unfair labor practice allegations is limited to the written
notice distributed by the Company. The document expressly prohibits solicitation
activities by the employees, alleged to be in violation of Section 8(a)(1) of the
Act, and explains a joint committee on safety, sanitation, and advisory matters,
alleged to establish an unlawfully assisted and dominated labor organization in
violation of Section 8(a) (2).
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The notice is a mimeographed writing containing nine pages. It starts with a
declaration of policy: "These pages contains [sic] some of the principal policies and
rules which have been established for the purpose of maintaining good employee
relations, promoting the general welfare of the employees and the Company, and
encouraging orderly and efficient operations." There follow five parts: I. Hours,
wages and general provisions; II. Joint committee on safety, sanitation, and advisory
matters; III. Grievance procedure; IV. General working conditions; and V. Regula-
tions. Part II, which is under attack by the complaint as the conduct of the
Respondent which ". . . initiated, sponsored, formed, assisted and dominated the
aforesaid Joint Management Employee committee for the purpose of dealing with
it as a labor organization," reads, in its entirety, as follows:
PART II
JOINT COMMITTEE ON
SAFETY, SANITATION AND ADVISORY MATTERS
(1) There will be a Joint Management-Employee Committee for safety,
sanitation and advisory matters which will meet at least once monthly. The
purpose of this committee shall be to work together to improve safety of opera-
tions, sanitation and cleanliness of the premises, and the general welfare of the
employees and the Company.
(2) The employee membership of this committee shall 'consist of one
representative from each of the departments (or sections) listed below:
1. Cutting and shipping departments
2. Pressing department
3. Assembly section
4. Sleeve and lining sections
5. Pocket, fronts, and finishing sections
6. Office
(3) The representative from each department shall serve a two months term
and will then be succeeded by the next member of their department, in order
of seniority sequence. Thus, each employee will ultimately have an opportunity
to serve from time to time.
(4) Employee committeemen shall cooperate with the management repre-
sentative on the committee in planning the program and agendas of meetings
and in obtaining maximum attendance by committee members.
(5) The meetings of the committee will be held outside of regular working
hours whenever possible, however, for time spent attending the regular
monthly meetings of the committee, the committee members will be compen-
sated at their regular straight time hourly rate.
In addition, the General Counsel attacks two sections of part V of the company
notice. Section A-What Every Good Employee Should Know-(3), reads:
Carrying on Outside Business-conducting outside business on company
property without obtaining permission from your department head is prohibited.
This includes solicitations of money or memberships, selling lottery chances or
any other items, and the posting or circulating of advertisements, circulars and
handbills.
Section C-Things to Avoid-group II(g), reads:
Commission of any of the following acts shall furnish cause for immediate
discipline, including discharge:
Conducting outside business on company property without the Company's
permission, including solicitations of money or memberships, the sale of lottery
chances or any other item, and the posting or circulating of advertisements,
circulars or handbills.
After stipulating that the notice in question was distributed to all employees on
April 1, 1959, the Respondent called one witness, Morris Sharff, a management
representative active in the day-to-day operations of the plant and who participates
in the formulation and implementation of the Respondent's labor relations policy.
It was he who prepared and distributed the notice. He testified credibly and with-
out contradiction, that the notice was also posted on the plant bulletin board, that
the employees were never told that any of its contents had been withdrawn or
cancelled, and that the Respondent never withdrew the directive language of part
II, channelling concerted activities through a committee selected and paid by the
Company. Sharff also said that the committee contemplated in part II never mate-
WALTON MANUFACTURING COMPANY 705
rialized, that there never were any conferences between the Company and any rep-
resentatives of the employees pursuant to part II, and that no such committee ever
met. Of course, as the General Counsel's affirmative case rests entirely upon the
stipulation, there is no evidence that any employees were ever advised that because
of their relative seniority in any department they automatically had become members
of such a committee. Sharff's final testimony, relative to the prohibition against
solicitation on company premises, was that there had been no occasion to enforce
the rule against any attempts by the employees to organize a union.
It is a long-established principle of Board law, consistently sustained by the courts,
that a flat rule prohibiting employees from soliciting membership in any organization
on company property on their own time unlawfully interferes with the rights of
employees to engage in concerted activities and therefore constitutes an unfair labor
practice in violation of the statute.' The unequivocal rule announced in section
A(3) of the company notice here involved prohibits ". . solicitations of . .
memberships" on company property, and expressly provides for discipline "includ-
ing discharge" against violators. As the proscription is not limited to working time,
and as no affirmative showing was made of special circumstances which could
justify the breath of the prohibition, it was unlawful on its face.2 Accordingly, I
find, that by promulgating this rule in its April 1, 1959, notice to the employees the
Respondent violated Section 8 (a) (1) of the Act.
With respect to part II of the notice, the General Counsel contends that its purpose
was to establish an organization of employees to deal with the Respondent in matters
relating to conditions of employment and that it in fact brought such a labor organ-
ization into being. While conceding, as he must, that there is no affirmative proof
showing that the committe contemplated by the language of part TI ever met or
functioned in any way, or even that the identity of its members ever became known
to the employees, he argues that that portion of the language providing for the
method of designating the employee representatives suffices to support a finding that
the committee indeed existed. The language does say that committee members
should be selected "in order of seniority sequence" in each department. With this
as the basic theory of this part of the case, the complaint alleges a violation of
Section 8(a)(2), which makes it an unfair labor practice for an employer "to
dominate or interfere with the formation or administration of any labor organiza-
tion or contribute financial or other support to it . . The General Counsel
expressly requested an order directing disestablishment of the committee as an un-
lawful labor organization in being The complaint also alleges, of course, that the
imposition by the Respondent of such a committee upon the employees violated
Section 8 (a) (1) of the statute.
Deferring, for the moment, the question whether the Respondent did form, assist,
and dominate a labor organization, there would appear presented the threshold
question whether the committee described in part II was a labor organization within
the intendment of Section 8(a) (2). It is called "Joint Committee on Safety, Sanita-
tion and Advisory Matters." It was clearly to represent and speak on behalf of all
the employees and to consist of representatives from each department. Further, it
was not only literally initiated and sponsored by the Respondent, but was also to
act at least in part, during working hours with Respondent paying the committee
members for their time. The committee was "to work together"-necessarily mean-
ing employee and employer representatives acting jointly-"to improve," among other
things, "the general welfare of the employees. . Although there is no explicit
reference in part II to wages, hours, or conditions of employment, I am satisfied, and
I find, that the committee was intended by the Respondent to concern itself with
such matters, and was so understood by the employees .3
The entire notice is entitled- "Employment Policies and Rules for Employees,"
and it covers, in the minutest details, all those aspects and terms of employment
regularly set out in a collective-bargaining agreement. Precise hours of work, rest
periods, equitable distribution of overtime assignments , premium pay, holidays,
vacation benefits, seniority specifications, and individual grievance procedures are
some of the itemizations appearing in the notice. It also sets out minute regulations
for such things as use of telephones for personal calls, physical examinations, acci-
dents, and absences for pregnancy. One page lists 20 separate offenses which could
s Republic Aviation Corporation v. N L B B, 324 U S 798
2May Department Stores Company, et at., 59 NLRB 976, enfd. 154 F. 2d 533 (C.A. 8).
cert denied 329 U S 725
8 General Shoe Corporation (Safety Committee), 90 NLRB 1330, 1854, enfd. 192 F. 2d
504 (C A. 6), cert. denied 343 U.S. 904.
54461-G0-vol 126 4651
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be committed by employees, and specifies possible disciplinary action for each. Part
II, the employee committee representation plan, appears on page 5, in the very
middle of this Magna Charta of employment.
The notice was tantamount to an individual contract of employment. It follows
that when part II provided for collective action to handle "advisory matters" and
"general welfare of employees" this part of the notice, like all the others, referred
to such matters as also pertained to conditions of employment. There is no indica-
tion , on this record, that the employees had any other interests in common with
the Company. All that appears as that they were the employees and the Respondent
the employer.
As the Respondent never took steps to implement the rule of employment provid-
ing for this joint committee, it is not possible to look to later developments for
explanation of any ambiguity that might appear in the phrases "advisory matters"
and "general welfare of employees." Nor can the Respondent's offer to prove, at
the hearing, that its unpublished intentions concerning the committee was to treat
with matters not related to terms and conditions of employment, now serve to clothe
those phrases with a restricted meaning in the minds of the employes. All they
knew was what their employer told them in writing, and all that is to be appraised
here is the reasonably foreseeable effect upon the employees of the Respondent's
acts. Advised, as an integral part of the regulations governing their employment,
that this was to be the method for dealing collectively with the company, they must
necessarily have viewed the practice as but another aspect of their jobs.
In the absence of a majority representative, entitled under the statute to exclusive
representative status as the spokesman for all the employees in matters relating to
terms and conditions of employment, an employer is free to deal directly with the
employees and to establish, as he sees fit, the precise terms which shall govern their
continued employment.4 In substance, this is precisely what the Respondent did
when it distributed the April 1, 1959, notice. By continuing on the job or by
entering upon it thereafter, each employee agreed to abide by these unilaterally
established specified conditions.
It is equally clear, however, that whether or not the employees have chosen to
be represented by a union, an employer is not free to impose such conditions of
employment upon them as contravene the provisions of the statute or necessarily
tend to deprive them of the self-organizational rights guaranteed by Section 7 of the
Act. There is no need for citation of authority to say he could not lawfully condi-
tion employment outright upon union membership. Similarly, and again without
need to belabor the point, if the Respondent here had added a 21st possible employee
dereliction-joining a union-as cause for discipline or discharge, the unfair labor
practice finding would be automatic. Indeed, such a "rule" would be indistinguish-
able from a direct threat to discharge any union member. Likewise, if one of the
rules, or conditions of employment imposed by an employer, is that there shall be
no collective bargaining, with discipline in store for any employee who attempted to
engage in it , the rule would be unlawful. If mere announcement that the employer
will not recognize or bargain with any union coerces the employees in their freedom
to join unions and to engage in the collective bargaining envisaged by the Act,
certainly requiring employees to agree in advance to refrain, as a condition of
employment, coerces them nonetheless 5
Here, in the April 1 notice, the Respondent made it a condition of employment
that collective negotiations between the Company and the employees, if there were
to be any, should follow the procedures set up in part II, with the Company deciding
who should be the spokesman for the employees at any given time, when and how
they should meet, and with the Company paying the employee representatives for
time so devoted. Such collective bargaining has very recently been held to be no
collective bargaining at all.6 By so circumscribing the employees' privilege to
decide for themselves what collective-bargaining agents they may choose, the
Respondent in effect compelled them to surrender their statutory right to engage in
true and free collective bargaining, to accept company imposed spokesmen, and ul-
timately, to remove any thought of true union activity from their plans-all this as a
condition of employment. That the Respondent called this arrangement a "rule"
instead of a "condition of employment" is but a play of words.
I hold that by distributing part II of its April 1, 1959, notice entitled "Rules for
Employees," the Respondent infringed upon the employees' statutory freedom to en-
4 J I Case Company v. N L.R B, 321 U S 332, 337
5 Adhesive Products Corp , 117 NLRB 265 , remanded on other grounds 25 '8 F. 2d 403
(C A 2)
0 N LR B v Cabot Carbon Company , et al , 360 U S. 203
WALTON MANUFACTURING COMPANY 707
gage in union or concerted activity guaranteed by Section 7 of the Act, and thereby
coerced ,them in violation of Section 8(a)(1), as alleged in the complaint.
To undo the coercive effect of distribution of part II of the April 1959 notice, re-
quires that the Respondent now make clear to all the employees that it is no longer
a "rule" of employment that collective bargaining in the plant must be carried out
in that fashion. The damage having been done by individual distribution of a
written notice, effective corrective results can only be achieved by redistribution of
a written notice , again to each individual employee, advising them that collective
bargaining will not proceed on that basis, that participation in the contemplated
activities of that committee or any committee like it is not a condition of employ-
ment , and that the employees are free to engage in collective bargaining , if they so
choose, through any union of their own choice. The Respondent will also be re-
quired to post a notice to the same effect on the plant bulletin board or boards. I
shall also recommend that the Respondent be enjoined from hereafter imposing this
committee , or any like labor organization upon its employees as a condition of
employment.
As stated above, the complaint further alleges, and the General Counsel requested
that an additional unfair labor practice finding be made, that by that same act of
distributing part II of the notice, the Respondent also violated Section 8(a)(2) of
the Act. Ordinarily, where particular conduct of a respondent is held unlawful
under one of the specified proscriptions of the statute, little or no purpose is served
by a further conclusion that as a matter of law the conduct also contravenes another
section. And the Board on many occasions has for that very reason declared it
unnecessary to decide, in a particular case, whether the act in question could be
called unlawful on additional grounds. Particularly is this so when the remedial
action in either event would be the same.?
I consider the situation presented here as such a case. In arguing that distribu-
tion of the notice was tantamount to forming , assisting, and dominating a labor
organization , to a sufficient extent to constitute a violation of Section 8(a) (2), the
General Counsel concedes that a preliminary factual finding essential to such a
conclusion is that the labor organization, or committee, did come into existence. He
would have it that announcement by an employer that a committee or organization
exists is all that is required to prove its existence. The fact that no committee ever
met, that no employees were ever designated by anyone by name, that no meetings
or actions of any kind ever took place to implement the announcement of the Com-
pany, he considers of no significance.
I seriously doubt that the total evidence in this case could support the factual
finding necessary to an 8(a) (2) violation conclusion, that the committee ever really
existed. It could as well, or more persuasively, be argued that all that happened
thus far is that the Respondent promised such a group would be created, insisted em-
ployees must in the future participate in it, and set up only the potential for a labor
organization . I cannot ignore either the fact that no action was ever taken pursuant
to the announcement, or the plain language of the statute, which defines a labor
organization, in part, as ". . . an employee representation committee . in which
employees participate and which exists. .. ." 8 [Emphasis supplied.]
More important, even assuming the General Counsel were correct on this point,
and the Board were to require the Respondent to "disestablish" the committee de-
scribed in the company notice, the net effect of the remedial action required of the
Respondent would be no different than that which is appropriate and required in
consequence of the unfair labor practice finding already made. There is no sub-
stantial difference between a notice which assures the employees that the part II
rule is canceled, and one which says that the committee is disestablished. Either
way, its potential or real existence is removed. Accordingly, I make no finding
that the Respondent violated Section 8(a)(2) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above, occurring in connection
with its operations set forth in section I, above, have a close, intimate, and sub-
7 Better Monkey Grip Company, 115 NLRB 1170, enfd. 243 F. 2d 836 (C.A. 5), cert.
denied 355 U S. 864; John Hancock Mutual Life Insurance Company, 92 NLRB 122,
enfd 191 F 2d 483.
8 Section 2(5) of the Act reads as follows, "The term 'labor organization' means any
organization of any kind, or any agency or employee representation committee or plan,
in which employees participate and which exists for the purpose, in whole or in part,
of dealing 'with employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work."
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial relation to trade , traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Walton Manufacturing Company is an employer within the meaning of Section
2(2) of the Act.
2. By promulgating a rule prohibiting employees from soliciting membership in
any organization on company property, and by imposing upon employees , as a con-
dition of employment , a requirement that collective bargaining must proceed on the
basis of a labor organization to be sponsored , formed, or assisted by the Company,
the Respondent has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, and has thereby committed
unfair labor practices within the meaning of Section 8 (a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. I
Local 35, United Association of Journeymen & Apprentices of
the Plumbing & Pipe Fitting Industry of the U.S. & Canada,
AFL-CIO and Richard E. Buettner . Case No. 14-CC-133-
February 18, 1960
DECISION AND ORDER
On October 6, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
Pursuant to Section 3(b) of the Act, the Board has delegated its
power in connection with this proceeding to a three-member panel
[Members Rodgers, Jenkins, and Fanning].
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 Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
THE REMEDY
Respondent excepts to the Trial Examiner's recommended order
as too broad in that it directs the Respondent to cease and desist from
inducement of work stoppages not only by the employees of Buettner,
the secondary employer directly involved, but also by the employees
126 NLRB No. 90.