Birmingham Ornamental Iron Corp.

National Labor Relations Board - Board DecisionsFeb 23, 1979

240 N.L.R.B. 898 (N.L.R.B. 1979)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Birmingham Ornamental Iron Company and United Steelworkers of America, AFL-CIO-CLC. Cases 10-CA 13479 and IO-CA-13493 February 23. 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBERS JENKINS AND Mt RPIIY On November 9, 1978, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Birmingham Ornamen- tal Iron Company. Birmingham, Alabama, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, ex- cept that the attached notice is substituted for that of the Administrative Law Judge. IRespondent's request for oral rgument is herehb denied hecause the record, the exceptions, and the brief aldeq uaei.x present the s, ucs and tile positilons of the parties. APPENDIX No-i(-ll To E P'iO I.i.s PosI') BY ORDER 0t 1Hil NAIIONAI. LABOR RAI I()NS BOARI) An Agency of the United States Government W. wi.l Not refuse to meet and bargain col- lectively with United Steelworkers of America. AFL CIO CLC, as the sole and exclusive col- lective-bargaining representative of our employ- ees in the following appropriate unit: All production and maintenance employees 240 NLRB No. 124 including truck drivers, shipping and receiv- ing employees, and plant clericals employed at our Birmingham, Alabama, facility: but ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. Wi. W\ll Nol maintain an overly broad no- solicitation rule which tends to inhibit our em- ployees from soliciting for the Union on the Company's premises, during their nonworking time. Wi wii.l NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. W. wiii.. upon request, bargain collectively with United Steelworkers of America, AFL CIO- CC as the sole and exclusive collective- bargaining representative of the employees in the bargaining unit described above in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Wi w l. rescind our overly broad no-solicita- tion rule which tends to inhibit employees from soliciting for the Union during their nonworking time on the company's premises. BIRMIN;N(;IAM ORNANMINIAI. IRON COMPANY DECISION STAI MIN EN OF 1 Hti CASE IRWIN KAPLAN. Administrative Law Judge: This consoli- dated proceeding was heard before me in Birmingham, Al- abama, on August 25. 1978. The charge in Case 10-CA- 13479, was filed by United Steelworkers of America, AFL- CIO-CLC (herein the Union) on February 27, 1978, and a complaint thereon issued March 29, 1978, alleging princi- pally that Birmingham Ornamental Iron Company (herein the Respondent) has since on or about February 6, 1978, refused to recognize and bargain with the Union as the certified collective bargaining representative in violation of Section 8(a)(5) and (I) of the National Labor Relations Act, as amended, herein called the Act. On March 6, 1978, the Union filed additional charges in Case 10-CA 13493, and a complaint thereon issued May 16, 1978, alleging inter alia that Respondent independently violated Section 8(a)( I) of the Act by maintaining an inval- id no-solicitation rule and by soliciting its employees to sign an antiunion petition. The Respondent contends that it is under no obligation to recognize and bargain with the Union on the basis that the underlying certification is as- sertedly invalid. In the alternative, Respondent contends that it did not violate Section 8(a)(5) of the Act on the grounds that the General Counsel failed to prove that the Union requested bargaining. Respondent also denies the BIRMINGHAM ORNAMENTAL IRON COMPANY 899 other substantive allegations in the consolidated cases. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FIN)IN(iS F4(, I JRISl)l(lION Respondent, an Alabama corporation. is engaged in the manufacture of metal furniture at its facility located at Bir- mingham, Alabama. During the past calendar year. which period is representative of all times material herein, Re- spondent from said Birmingham. Alabama facility, sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. Respondent admits, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 11 1 ABOR ORGANIZAIIO() The parties stipulated. and I find, that the Union is a labor organization within the meaning of Section 25) of the Act. III TlFI Al I E(iD NFAIR I ABOR PRA('II('lS A. The 8(a)(5) ,4llegaion I. Certification On July 13, 1977, a Board-conducted secret-ballot elec- tion was held in Case 10-RC 11040. among Respondent's employees in a stipulated appropriate unit to determine the question concerning representation.: A tally of ballots re- vealed that of approximately 288 eligible voters, 134 cast valid votes for and 138 cast valid votes against the Peti- tioner (the Union). 7 cast challenged ballots and there were no void ballots. Thus the seven challenged ballots were determinative of the election result. Six of the seven chal- lenged voters were challenged by the Board agent on the basis that their names did not appear on the Employer's eligibility list. The other individual was challenged by the Union on the basis that he was assertedly a supervisor within the meaning of Section 2(11) of the Act but was declared an eligible voter after the Union withdrew its challenge. Thus only the eligibility of the six individuals whose names did not appear on the Employer's eligibility list was in dispute.' The record disclosed that each of the disputed employ- ees was laid off on June 3. The Union (Petitioner) asserted I All dates hereinafter refer toi 1977 unless otherulse IndicaLed -The appropriate unit as stipulatld is All production and mainilenance emiplo'.ce, including truck drtcrs, shipping and receiling eplo\ee and plant clerical eploed h the Emplozer at iis Birmingham, Alahamln. lacli\ hilt excludIng all office clerical empllo ees. professional enlploseex, uard aid super lw.lr, Its defined in the Act The tniion also filed tinlel ohjecitlionls il the electollli shlch cee v aived and disposed of h stiplatillo h the parties and adopted h Ilic Regional [)irector in his Report on ()hbections I Resp xh . p. 41 that these individuals were eligible to vote in the election on July 13, on the basis that they were merely temporarily laid off. Respondent (Employer) on the other hand con- tended that each of the disputed individuals had been ter- minated and maintained that the' were ineligible. The de- termination of their eligibility depended on whether these individuals at the time of the election had a reasonable expectancy of employment with Respondent in the near future. After an investigation, the Regional Director on August 17 issued a Report On Challenged Ballots And Order wherein he noted inter alia that two of the six disputed individuals had already been recalled prior to the election (Resp. Exh. 1,. p. 2) and that when a similar layoff occurred approximately 2 years earlier, the Employer recalled most of his laid off employees. (Resp. Exh. 1. p. 3) He concluded that at the time of the election there existed a reasonable expectancy of employment and that they were therefore eligible. Accordingly. he recommended to the Board that the challenges to their ballots be overruled, that the chal- lenged ballots be opened and counted and that a revised tally of ballots be issued.4 By letter dated August 29. Respondent filed timely ex- ceptions to the Regional Director's Report on Challenged Ballots and Order, specifying the following: 1. The conclusion drawn in the Report on Chal- lenged Ballots is inconsistent with the Dismissal Letter is Case IO-CA 12863, issued August 12. 1977, in that the latter states the Employer "terminated" these same men. 2. The investigating Agent has knowledge that sev- eral of the terminated men were employed elsewhere. a fact which indicates they were not awaiting or antici- pating reemployment. 3. The Report ignores the Employer's totally con- sistent practice of using the latter date of hire for re- hires and does not have an'y incident of layoff or re- call. Yet the report states, "The Employer has in the past recalled a number of employees from layoff." On November 30 the Board issued its decision, remand- ing the case to the Regional Director for further action consistent therewith. In pertinent part it is stated therein as follows: 6 The Board has reviewed the record in light of the ex- ceptions and hereby adopts the Regional Director's findings and recommendations. Accordingly, the case is hereby remanded to the Regional Director for Re- gion 10 for the purpose of opening up and counting the challenged ballots, and further appropriate action. Thereafter, on January 28. 1978. the Regional Director issued a Certification of Representative, certifying the Union as the exclusive bargaining representative in the unit described above.7 In contesting the validity of the above noted certifica- tion, the Respondent seeks to relitigate issues previously Reap txh I. Rcsp [Exh II(a). p I Rcp. Exh l(h) Scc fI, 2 abohe. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determined by the Board in the representation proceeding. According to Respondent, the Board was in error in adopt- ing the Director's findings and recommendations. For rea- sons discussed below however, I find that Respondent is not now entitled to an evidentiary hearing given the nature and scope of Respondent's specified exceptions to the Director's "Report" and the evidence it made available prior to the Board decision. In this regard it is noted that Respondent does not rely on newly discovered evidence nor does it contend that it was denied the opportunity to submit material facts for the Board's consideration prior to its decision. In fact, Respondent's exceptions (Resp. Exh. I(a), p. I) to the Regional Director's "Report" appear to have been directed only to the conclusions drawn by the Director from the facts made available to him. There is no evidence tending to show that Respondent sought an evi- dentiary hearing prior to the Board's decision predicated on a material issue of fact having been raised in the "Re- port." 8 Thus the Board could properly rely on the Region- al Director's findings of fact not specifically excepted to by Respondent. For example the Director in his "Report" noted "There is no evidence that any of those on layoff were told that the layoff was permanent." (Emphasis supplied; see Resp. Exh. 1, p. 4). Further, the Director noted that "It is uncontested that Jesse Chapple and Earnest Pendleton (two of the six disputed employees laid off on June 3) were rehired and began working on July 11, 1977, and June 22, 1977, respectively." (Emphasis supplied; see Resp. Exh. I, p. 2). These as well as other material uncontroverted facts contained in the "Report" tend to militate in favor of the Director's conclusion on the basis of objective evidence that the employees had a reasonable expectancy that they would be recalled by Respondent for future employment. In these circumstances, I am not persuaded that Respon- dent has set forth a legally sufficient basis to provide a hearing as requested. 9 It has long been established that in the absence of newly discovered or previously unavailable evidence, or special circumstances, a respondent is not entitled to relitigate is- sues in cases involving refusal to bargain allegations under Section 8(a)(5), which were or could have been litigated in the underlying representation proceeding.' 0 As Respondent has not demonstrated that the aforenoted conditions are present in the case at hand, I find that I am bound by the Board's certification." Accordingly, I find that the Union since on or about January 27, 1978, has been the sole and exclusive collective-bargaining agent for Respondent's em- While Respondent in its answer (G.C. Exh. I(e) ) asserted that it formal- ly requested such a hearing, evidently it was made only after the Board issued its decision adopting the Director's findings and recommendations. Thus Respondent's offer of proof which was rejected included a document to the Board entitled "Motion for Reconsideration and Other Relief." 9 See N.L.R.B. v. Air Control Products of St. Petersburg, Inc.. 335 F.2d 245. 249 (Sth Cir. 1964): "If there is nothing to hear. then a hearing is a senseless and useless formality." See also N.LR.B, v. Bata Shoe Compan. Inc.. 377 F.2d 821, 826 (4th Cir. 1967). cert. denied 389 U.S. 917: "[Tlhere is no requirement, constitutional or otherwise, that there be a hearing in the ab- sence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification. 0 See Pittsburgh Plate Glass Co. v. N.L R.B, 313 U.S. 146. 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). li See. e.g.. Kendall College, 228 NLRB 1083. 1084 (1977). ployees in the appropriate unit as set forth in the Certifica- tion of Representative. 2. Demand for Bargaining The complaint alleges that the Union, as the certified collective-bargaining agent, at all times since January 27, 1978, has requested Respondent to bargain collectively for the employees in the certified unit. Further, that since on or about February 6, 1978, the Respondent has failed to recognize and bargain with the Union in violation of Sec- tion 8(a)(5) and (I) of the Act. In support thereof Buddy King, union field secretary, credibly testified 2 that on January 31, 1978, and February 2, 1978, respectively she prepared, typed, and mailed (certified) a letter to Respon- dent requesting bargaining. She also testified that she stamped the name of the Union's district director consis- tent with the Union's usual practice in such matters. The above-noted January 31 letter on the union letter- head in its entirety reads as follows: 1 3 January 31st, 1978 Mr. Ben F. Harrison, President Birmingham Ornamental Iron Company P.O. Box 1357 Birmingham, Alabama 35201 Dear Mr. Harrison: This is to advise you that the Union, having been cer- tified as the bargaining agent by the National Labor Relations Board, is ready to negotiate with respect to the terms and conditions of a collective-bargaining agreement covering the employees of your Birming- ham, Alabama plant. Please contact me at your earliest convenience in or- der that we may select a mutually satisfactory date to begin these contract negotiations. Very truly yours, Howard Strevel, Director District 36 King testified that she was told that Harrison was prob- ably in California and not in Birmingham, so on February 2, 1978, she sent the second letter referred to above re- questing bargaining but this time addressed the letter to Bill Maloney, Respondent's plant manager. The letter sent by certified mail reads as follows: 14 February 2nd, 1978 CERTIFIED MAIL RETURN RECEIPT REQUESTED Mr. Bill Maloney, Plant Manager Birmingham Ornamental Iron Company P.O. Box 1357 Birmingham, Alabama 35201 2 Counsel for Respondent represented that he has known Buddy King for a number of ears and offered to stipulate that she testified truthfully. In view of the foregoing and on the basis of my own observations. I find that Buddy King testified credibly in all material respects. See G.C. Exh. 4. 14 See G.C. Exh. 5. with attached signed certified receipt. ADA BIRMINGHAM ORNAMENTAL IRON COMPANY 901 Dear Mr. Maloney: In the event that Mr. Ben F. Harrison, president of Birmingham Iron Company, is not presently at the Birmingham Plant, I would advise you as plant man- ager that the Union, having been certified as the bar- gaining agent by the National Labor Relations Board, is ready to negotiate with respect to the terms and conditions of a collective-bargaining agreement cover- ing the employees of the Birmingham. Alabama plant. Please contact me at your earliest convenience in or- der that we may select a mutually satisfactory date to begin these contract negotiations. Very truly yours. Howard Strevel Director. District 36 Respondent has not responded to the aforenoted letters requesting bargaining. According to Respondent on basis of the foregoing facts and the entire record, the General Counsel failed to create a presumption that Respondent received a request to bargain and therefore the allegation that Respondent violated Section 8(a)(5) by refusing to bargain must be dismissed. In any event Respondent main- tains that even if a request to bargain was made it would consider such a request a nullity because assertedly the underlying certification is invalid. Respondent refused to deny that in fact it did not receive a request to bargain. As noted above, the credible evidence reveals that a duly authorized union agent prepared. typed, and mailed certi- fied letters to Respondent requesting bargaining. It is not- ed inter alia, that on the face of the aforenoted letters the Union listed the identical post office box number that ap- pears in the underlying charges in Cases 10-CA- 13479 (G.C. Exh. I(a)) and I-CA-13493 (G.C. Exh. I(f) ) and that Respondent in its answer admits service thereof. Fur- ther, the complaints in Cases 10-CA-13479 and 10-CA 13493 and other formal documents list the same post office box number for Respondent. In these circumstances I find that the General Counsel established a presumption of re- ceipt which was not overcome by virtue of Respondent's failure to deny such receipt.' 5 Having previously determined that in the circumstances of this case I am bound by the Board certification in Case 10-RC-I 1040 (G.C. Exh. 2), 1 also reject Respondent's al- ternative contention that the certification is invalid and any request to bargain thereon is meaningless. Accord- ingly, I find that Respondent, by refusing to recognize and bargain collectively with the certified Union as the sole and exclusive bargaining agent of Respondent's employees cov- ered by the certified unit, thereby violated Section 8(a)(5) and (I) of the Act as alleged. '(Cf. S. rederick Saon.ne d h i S I-rederl k Slan.,le ( , 12'7 NLRB 1301. 1302 (1960). wherein the Board noted that Respondents unequlioc.ll denial of receipt of the letter requesting bargaining created ain issue of fact which was resolved in fa or of said Respondent B. The 8(a)( ) Allegations I. The anti-union petition The General Counsel contends that Sewing Department Supervisor Laverge Huffstettler 16 in early October solic- ited employees in the plant to sign a petition stating that they do not desire to be represented by the Union and Respondent thereby violated Section 8(a)(I) of the Act. In support thereof, the General Counsel adduced testimony from three former employees, Brenda Warren, Billy Cher- ry, and Brenda Jackson. The Respondent contends that the testimony of the aforenamed witnesses failed to establish that it, through Huffstettler, violated Section 8(a)( I) by sol- iciting employees to sign an antiunion petition. Respon- dent did not call any witnesses. According to Warren. in early October, coemployee Teresa Skinner gave an antiunion petition to Supervisor Huffstettler. Sometime later that same day., Huffstettler and her assistant, Betty Tucker,'7 came over to Warren's worktable where Warren was working with employee Bets) Carroll. Warren testified that "she (Carroll) had some pa- pers. The next thing I knew, Betsy Carroll was reading and she signed the paper, and she passed the paper down to me." Warren then assertedly asked whether this was "the petition to sign the Union [out] s to which Carroll re- sponded "yes" while Huffstettler and Tucker nodded their heads. Warren did not sign the petition and was unable to state whether it was Huffstettler or Tucker who passed the petition on to other employees. I find that Warren's testimony falls short of establishing that Huffstettler solicited employees to sign an anti-union petition. Warren merely testified that employee Skinner gave a petition to Huffstettler but did not relate any of the circumstances thereon. As to what transpired later that day at Warren's table, it is noted that Warren did not identif, Huffstettler as the individual who gave the petition to Car- roll." All Warren established is that Carroll had some "pa- pers" which included the petition and it was Carroll who handed her said petition and told her what it represented. As for Huffstettler nodding her head in response to Warren's inquiry regarding the purpose of the petition. Re- spondent argues convincingly that "an unbiased reading of Warren's testimony . . . is totally consistent with the con- struction that Huffstettler became aware of Carroll's solici- tation of Warren only after Warren directed her attention to it by asking the question." As Huffstettler was the de- partment supervisor I cannot presume without more that she was at Warren's worktable for an illegitimate purpose. The most that can be said is that Huffstettler acquiesced in h i admitted. and I find. that fluffsettler 1 a uper.lor ithiln the mieanilng of Sec. 21 1 of the Act. I tucker is not alleged to he .ia ltituor? uperlior oir .ient f Rspon- denl nor wa. her statu, Iitigated ]t Ihe slenilgraphitc record is hereh\ corrected h subhsllluting the uord ,,ur f,r the word up as t a.ppear at p 38. 1 24 If the petition wa, giens t (t carroll h I tucker. it is noted that the (Jcneralo ( unsel had not colntended that l ucker is a statulorN supers zsor or agent of Reponden. In an eent Warren did not name Tucker either s the e sho gae the petition to (.'rrrill 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antiunion solicitation which is not actual solicitation in vi- olation of Section 8(a)( I) of the Act.2 " Billy Cherry testified that in early October, Betsy Carroll passed around the antiunion petition to employees and then took the petition to Huffstettler. While Cherry could observe Carroll and Huffstettler conversing, she could not hear what they were saying. As with the testimony of Bren- da Warren described above, I find that the testimony of Cherry also fails to establish that Huffstettler participated in soliciting employee signatures on an antiunion petition. Brenda Jackson testified in substantially the same man- ner as Billy Cherry. In early October Jackson signed the antiunion petition which was passed around to employees and then passed on to the front of the sewing department where Huffstettler and Carroll were conversing. Jackson was approximately 10 feet away but was unable to hear what they were saying. There is no evidence tending to show that Huffstettler urged any employee to sign the antiunion petition. Tucker Carroll, and Huffstettler did not testify. However, on the basis of the testimony adduced from the witnesses in sup- port of the allegation. I find that the General Counsel failed to establish by a preponderance of the evidence that Huffstettler solicited employees to sign an antiunion peti- tion.21 Accordingly, I shall dismiss this allegation. 2. The no-solicitation rule Respondent's Employee Handbook in pertinent part prohibits the following: "Any soliciting on company prem- ises and time without prior approval of management." 22 The General Counsel asserts that the above-noted no- solicitation rule is overly broad and that Respondent by maintaining said rule since on or about September 10, 1977, has violated Section 8(a)(1) of the Act. While Re- spondent in its answer concedes that it maintains the rule as alleged, it asserts that it is in the process of changing said rule. In its brief, Respondent further concedes "that this rule does not comport with the current criteria for val- id no-solicitation rules." However, Respondent submits that the allegation should be dismissed because there is no evidence tending to show that the rule was enforced or that it had an inhibiting effect upon employees. With regard to criteria governing no-solicitation rules. the Board has denoted the following: A rule prohibiting solicitation during "work time" or "working time" is, in our opinion, sufficiently clear to employees to justify requiring the party attempting to invalidate the rule to show, by extrinsic evidence. that, in the context of a particular case, the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during breaktime or other periods when employees are not actively at work. On the other hand, in our opinion, a 21 (f. Lehigh Lurnber ( onilni. 230 NIRB 1122. 1127 (1977). crifdl 77 F.2d 727 (3d (ir 197X). .1 While I find that the (General ('ounels witnesses testified Iruthfull . Iheir estinlon) was (If littie prohtiive value and 1tI sifficient to create t nexus helween Huffsiettler and the circulation of he anlltnionl i petllitn See (;.('. Exh 3. p X18 rule prohibiting solicitation during "working hours" is primafacie susceptible of the interpretation that solici- tation is prohibited during all business hours and, thus, invalid. We would therefore require the emplover to show by extrinsic evidence that, in the context of a particular case, the "working hours" rule was communi- cated or applied in such a way as to convey an intent clearl to permit solicitation during hreak time or other periods when employees are not activel at work.2 3 [Em- phasis supplied.] In the instant case the General Counsel has met its prima Jfiie burden by introducing the disputed rule which on its face is conceded to be and I find presumptively invalid under Board criteria. A fortiori, the burden shifts to Re- spondent to demonstrate that it communicated to its em- plo)ees that they were free to engage in solicitation during nonworking time and in nonworking areas. As Respondent has produced no evidence in rebuttal, I find that Respon- dent at all times material herein has maintained an overly broad no-solicitation rule in violation of Section 8(a)( ) of the Act.24 IV HE EFILI:I OF IIF UNFAIR ABOR PRA(il(ES PON lOMMI Rl' The activities of Respondent set forth in Section I11, above, occurring in connection with the operations de- scribed in Section , above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. CON'I USIONS OF LAW 1. The Respondent, Birmingham Ornamental Iron Company, is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Steelworkers of America, AFL- CO1-CLC. is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since January 27. 1978, the Union has been, and is now, the sole and exclusive bargaining repre- sentative of the Respondent's employees in the following described appropriate bargaining unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees including truck drivers, shipping and receiving employees and plant clericals employed by Respondent at its Bir- mingham. Alabama facility; but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 4. By failing and refusing on or after February 6, 1978, to meet and bargain collectively with the Union as the sole and exclusive bargaining representative of the employees L ,l x Iierntrirnalt In1,-. 211I NI.RB 749, 751) (1974). See. e... J L ltdit, ( rlpanil, 98 NLRB 172 (19721: cf .clc Inter- tl....wtnlI . rtli , upafra BIRMINGHAM ORNAMENTAL IRON COMPANY 903 in the appropriate unit described above, the Respondent has violated, and is violating. Section 8(a)5) and (I) of the Act. 5. By maintaining an overl, broad no-solicitation rule which tends to inhibit emplo)ees from soliciting for the Union on the company's premises during their nonworking time, the Respondent has restrained and coerced its em- ployees, and is restraining and coercing its employees. in violation of Section 8(a)( 1 ) of the Act. 6. The Respondent did not engage in unfair labor prac- tices other than those found herein. Tlii RM Im Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. I shall recommend that it be ordered to cease and desist therefrom, and, upon request, bargain col- lectively with the Union as the duly certified collective- bargaining representative of all employees in the appropri- ate unit and, if an understanding is reached, embody such understanding in a signed agreement. Further, having found that the Respondent is maintain- ing an unlawful no-solicitation rule in the plant. I shall recommend that it be ordered to rescind that rule and to so advise its employees. Still further, it will be recommended that Respondent cease and desist and take certain other affirmative action. as provided in the recommended Order below, designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 25 The Respondent, Birmingham Ornamental Iron Compa- ny, Birmingham. Alabama, its officers, agents, successors. and assigns. shall: : In the esxen no excepion' , are filed a, prvoided h Sec 1(02 4> [1i the Rules and Re[gll.ations f the Natiunal I hibr Realliins BHoird. he firnding conclusions. and recommnended Order herein hall ai pro'.idcd ini Se 102 48 of the Rules anid Regulaiions. he .Tdpiled h\ he BHz,.rd taid hcillc [is findings. conclusionsi, mld Order. itd all obhellons theret, hall he deerned waied for all purposes 1. (ease and desist from: (a) I-ailing and refusing to meet and bargain collectively with LUnited Steelworkers of America, AFL ('IO CLC, as the sole and exclusive collective-bargaining representative of the emploees in the unit found appropriate herein. (hb Maintaining an overly broad no-solicitation rule which tends to inhibit employees from soliciting for the U nion on the compan 's premises during their nonworking time. (c) In an' like or related manner interfering with. re- straining. or coercing its employees in the exercise of the rights guaranteed them b Section 7 of the Act. 2. Take the following affirmative actions to remedy the unfair labor practices and to effectuate the policies of the Act: (a) Upon request bargain collectively with the Union, as the sole and exclusive collective-bargaining representative of its employees in the above-described unit with respect to rates of pa. hours of employment, and other terms and conditions of employment, and, if an understanding is reached. embody such understanding in a signed agree- men t. (b) Rescind the no-solicitation rule as it is stated in the 1976 Employee's Handbook. (c) Post at its Birmingham. Alabama, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 10. after being duly signed by Respondent's au- thorized representative. shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places. in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken bh Respon- dent to insure that said notices are not altered, defaced, or covered bh any other material. (d) Notify the Regional Director for Region 10. in writ- ing within 20 days from the date of this Order. what steps the Respondent has taken to comply therewith. Ilthe eeclt thli tlis ()Order i en[rticed hb it Jud.l Iment f a l nlitcd Stlltex ( olrl t f \ppe.ll, the xird in the rlxtiice readine "fl-ted h Order of the \.itl'i.Il I ihor Rela.lli s Board" h.all rea.d ' 'osted I'Pltri.rllt t) a Judeirnilt te i n ted State ( mirt if ppeals Irif UltM-l an Order f ihe \.till. ll[ aIl.l Rek.ioxl Bo.atd"