Clougherty Packing Co.

National Labor Relations Board - Board DecisionsFeb 26, 1979

240 N.L.R.B. 932 (N.L.R.B. 1979)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clougherty Packing Company and Steven White. Case 21-CA-16474 February 26, 1979 DECISION AND ORDER BY MEMBERS PENELLO. MURPIIY. AND TRUESDAI On November 9, 1978, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions, and the Charging Party filed a response to the exceptions. 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 the response thereto and has decided to affirm the rul- ings, 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 Respondent, Clougherty Packing Compa- ny, Los Angeles, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. Respondent has excepted to certain credibilitl findings made bh the Administrative Law Judge. It is the Board's established polico not to over- rule an Administrative l.aw Judge's resolutions with respect to credihilits unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Slandard I)ri WB/l Products. Inl 91 NIRB 544 (1950). enfd. 188 F.2d 362 (3d (ir. 1951). We have carefulls examined the record and find no basis for reversing his findings In his t)ecision, the Administrative I.aw Judge erroneously referred to the Board's Decision in Soddard-QuirkA 11anufuauring (o, 138 NI.RB 615 (1962). as indicating "that a presumption of illeahlivr applies to distribution in nonworking areas" (emphasis supplied). As is clear from his immediately following quotation from Stoddard-Quirk. however. the Board indicated in that case that no-distribution rules which were not limited to prohibiting distribution in working areas are presumptively invalid. ' We have modified the Administrative Law Judge's notice to conform with his recommended Order. 140 NLRB No. 146 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain or enforce any rule which requires prior management approval for our employees, during nonworking time in non- working areas of our plant property, to distrib- ute literature for purposes protected by Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. WEt WILL rescind any rules presently in effect which require our employees to obtain manage- ment permission for the distribution of such lit- erature on their nonworking time in nonworking areas of our plant property. CLIOUGHERTY PACKIN(; COMPANY DECISION STATEMENT OF TIHE CASE HAROLD A. KENNEDY. Administrative Law Judge: This case presents the question of whether an employer violated Section 8(a)(I) of the National Labor Relations Act, as amended (29 U.S.C. 158), by promulgating or enforcing an overly broad "no distribution" rule. Having considered the whole record and determined that the Employer did main- tain such a rule, I shall recommend issuance of an appro- priate remedial order. The Employer is Clougherty Packing Company, which operates a meatpacking plant at 3049 East Vernon, Ver- non, California. It admits that it sells and ships products valued in excess of $50,000 to out-of-state customers, that it purchases and receives products valued in excess of $50,000 from out-of-state suppliers, and that it is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of the Act. Based on a charge filed by Steven White on March 10, 1978, the Regional Director for Region 21 of the National Labor Relations Board in Los Angeles, California, on April 26, 1978, issued, on behalf of the Board, a complaint alleging that Respondent, acting through its director of la- bor relations, William Regan. on or about March 3, 1978, had interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act by: (a) Orally promulgating "an overly broad no distribu- tion rule, which prohibits the distribution of union litera- ture by employees during nonwork times and in nonwork areas of Respondent's facility." (b) Continuing to enforce the no-distribution rule since CLOUGHERTY PACKING COMPANY 933 on or about March 3, 1978. The hearing was held at Los Angeles, California, on July 6, 1978. The Charging Party, Steven White. testified for the General Counsel. William Regan, admittedly a supervisor of Respondent, testified on defense. White, a butcher-laborer, has worked for Respondent for about 2 years. He is a member of the Butchers Union Local 563, Amalgamated Workers of America. He has been a member of a factional group or committee within the Union known as Meatworkers for a Fighting 563. The Fighting 563 Committee recently ran its own slate of candi- dates for union offices, White being the group's candidate for the office of recording secretary. The Union held an election in January 1978, but it was overturned by the In- ternational Union because of claimed irregularities. Cam- paigning for the second election began in March 1978. The violation occurred, if it did, on the morning of March 3, 1978, while many of Respondent's employees, including White, were taking a break in the plant's court- yard. A diagram of the courtyard is in evidence as General Counsel's Exhibit 2. The courtyard is rectangular in shape, being approximately 180 feet long and 60 feet wide.' Most of Respondent's employees eat their lunches and take their breaks in the courtyard.2 A "'lunch truck" is stationed in the courtyard between 5 a.m. and I p.m. each day, where coffee and food items may be purchased by employees. There are wooden benches alongside the walls of the court- yard. The courtyard is surrounded by buildings-an office on one end, where the punch clock is located; a coatroom on the other, where employees exchange their soiled coats for clean ones; and a washhouse on one side, where racks and tanks are usually washed. Racks and tanks, used in connection with Respondent's butchering activities, move in and out of the courtyard, where they are sometimes washed and temporarily stored. There is considerable traf- fic at times through the courtyard area. Employees go through the area in moving from one department to anoth- er. Purchasers and "outside sales people" also pass through the area. One may enter the courtyard either in the north- east corner (coming from the back buildings known as the "north forty") or near the southwest corner (from the front dock loading area). White testified that on March 3, while he was on his break between 8:25 and 8:40 a.m., he passed out a one- page leaflet to other employees who were on break in the courtyard area. The leaflet handed out by White carried the message that the International Union had ordered a new election and contained critical comments about the "current leaders" of the Union. In addition, the leaflet in- vited support for the Fighting 563 Committee from mem- bers of Local 563 and listed the committee's slate of candi- dates.3 White testified that he handed out a leaflet only to |The diagram was received at the hearing b stipulation Respondent's counsel noted at the time that the stated dimensions were prohablN more generous than actual." Respondent's defense witness. William Regan, stated that the court)ard was onl, 20 feet wide. referring to the distance hetween the benches on each side - Respondent employs oser 1.00() emploees here is a plant cafeteria. but 75 percent or more than 700 emplosees, take their breaks n the court- yard. Respondent's plant is in operation 24 hours a da One of the leaflets s n evidence as G (' h. 3 persons on break. He stated that while handing out the leaflet, he was approached by the Company's personnel director and told to stop distributing it. His testimony on direct on this point reads as follows: I had entered the courtyard area from where I work. which is through the entrance on the south-I'm sorry. make that the northeast entrance to the courtyard and people from various departments come to the lun- chtruck and get their coffee and whatever and sit down on the wooden benches and after most of the people had been seated, I went to the bench adjacent to the wash house on the west side of the courtyard and went from north to south handing leaflets to peo- ple as they were seated. just going down one by one, and I crossed over to the east side and began at the north end of the bench along the wall of the building and proceeded to pass them out again from north to south towards the men's room on the southeast corner. Q. While you were passing out leaflets, did you have occasion to have a conversation with anyone from management? A. Yes, I did. Q. Who? A. Bill Regan. Q. Who is Mr. Regan? A. He is Personnel Director for the company. Q. What, if anything, did he say? A. He told me, "lI'm only going to tell you this one time. No one is to pass out any literature on company property. Is that perfectly clear?" Q. What, if anything, did you respond? A. I said that I understood. Q. Had you passed out leaflets in that courtyard during breaks and lunch before? A. Yes. Many times. Q. Had anyone from the company ever said any- thing to ou about it before? A. No. White said he had been unaware of any company rule that prohibited distribution of literature. He identified an- other Fighting 563 Committee leaflet (G.C. Exh. 4), which he had distributed during the prior campaign in January. White testified that he had observed others "distribute things for various gambling activities, for social invitations for charity solicitations" in the courtyard. He recalled that there had been solicitations for the City of Hope and the credit union, sales of candy and jewelry by employees, and operation of lotteries or pools on paycheck serial numbers and special sporting events, such as the world's series. William Regan. who is responsible for the company's insurance, sanitation, personnel, and employee relations and acts as the Company's assistant plant superintendent. testified that Respondent permitted distribution of "litera- ture" in the company parking lot, but not in the courtyard area. He said he had not seen anyone distribute literature in the courtyard before the morning of March 3, when he saw White do so. Regan said the plant nurse first called his 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attention to the fact that the Fighting 563 leaflet was being passed out on the courtyard on March 3. at "around II o'clock." he thought.4 Testifying on direct. Regan said he walked to a point where he was able to see "the entire courtyard" and ob- served White pass out a leaflet to "[e]veryone that he walked by," which included persons actively working and those who were not. On cross-examination, he said he ob- served White pass out the leaflet for a period of 2 minutes. Regan stated that he saw White hand a leaflet to two em- ployees who were on racks moving on power dollies. iHe maintained that White interfered with production, as the two working employees spent 5 or 6 seconds reading the leaflet although he knew of no one arriving at his work station late that morning. "They stopped and looked at it and took off," he said. Regan said he knew "almost ev- eryone" at the plant, but he could not identify the two employees involved because, he said, "I was more interest- ed in watching him" (i.e., White). "I was not paying much attention to them at all": "what stood out in my mind." he added, was that "I knew they were working." 5 Regan said the Company did not allow distribution of literature primarily because of the "sanitation problem." According to Regan, the I)epartment of Agriculture, which has assigned 14 meat inspectors to Respondent's plant, had complained about the trash and documents on Respon- dent's plant floor. Regan said he had previously found lit- erature all over the plant, but not after he had spoken to White on March 36 Regan acknowledged a difference between solicitation and distribution, but he indicated that company policy prohibited both without permission of management. There is no "formal, written rule." he said, but "[i]t is a general rule known by most of the employees" that "you must get permission from us." Company-sponsored solicitations are permitted, he said. The credit union solicitation was ex- pressly approved by the ('ompany, even though it ham- pered production. In fact, Regan said he had directed dis- tribution of a Vernon Employees Credit Union leaflet (in evidence as G.C. Exh. 5) in the courtyard and throughout the plant. Employees were allowed, moreover, to sign up throughout the day. Regan said he also gave permission for the City of Hope solicitation throughout the plant. He was aware that pools were sold at the cashier's cage "[d]uring the World Series and different times like that," but he said he did not know of any paycheck pools. Regan stated that he had personally stopped the sale of candy and distribu- tion of other materials on company premises. White was a more impressive witness than Regan. I credit White's description of the activities occurring in Re- 4 Regan later indicated that White's break u;is at 8 25 White testified on rehulttl that he "ahbslutel,," did not hand out anl leaflet to "people n dollies" on M;rch 3. lie also denied giing .a leaflet to the comnpa ny nurse. who he said was tnol a nieniber of the unit. W'ite alll stated that there was less traffic (Including racks or lllkl thllrough the COirt,ard area than what Regan had implied White could recall 1o one iI the colrtilrd during his break who was Lot al.(.o on break Regan said the courtyard is cleaned " onitiuall"ll. ' I here is .t clc.ilup crew which cleans tip all departments and equipment. According to Re.anl. the coffee nan -responsible for policing the courtalrd ar.Ci. lIld hIe liad picked p 60 to 70 leaflets f the t pe W hlte hd piassed ti i1II Ma1rch 3 spondent's courtyard those that generally occur between 8 a.m. and I p.m. on a given workday and those that spe- cifically occurred during White's break on the morning of March 3, 1978-over the contrary testimony of Regan. I also credit the testimony White gave concerning his distri- bution of the Fighting 563 campaign leaflet over the con- flicting evidence given by Regan. Regan claimed that White passed out a leaflet to two persons on duty. but he was unable to identify them or give any description of them other than that they worked in the cooler and were riding on powered dollies. Regan main- tained "production goes on" in the courtyard and that em- ployees on break must "get out of the way for the produc- tion people," who may wash equipment in the courtyard, store it there, or move it through the area. He gave a state- ment on March 31 that there had been "approximately seven employees washing tank racks and pushing equip- ment in the area," but he testified that he could recall no racks being washed in the courtyard. However, White re- called no equipment being washed or dollies being moved through the courtyard during his break that morning. White testified that at certain periods of the day after 8 a.m. there might be "light" traffic through the yard, involv- ing the movement of six or so dollies, but at other times there would be none. White could recall no dollies, tanks, or racks moving through the courtyard during his break on the morning of March 3. He could recall no racks being washed, and he could recall no one in the courtyard who was not on break. More importantly, he was positive he gave a leaflet to no one who was working--in accord with instructions given by the Fighting 563 Committee counsel prior to his distribution. Concededly, when Regan ap- proached White, White was next to the benches near the men's room. Regan did not deny speaking to White as the latter had testified. Specifically, I find that White did not hand out any leaf- let to any employee who was riding on a dolly or to any employee who was engaged in any work activity. He dis- tributed the leaflet only to employees who were on their break and in an area where no production or other work activity was occurring. 7 Thus. the leaflet in question was not distributed during worktime (either as to White or as to any recipient of the leaflet), and it was not distributed in a work area. Decisions of the courts and the Board give guidance on the distribution of union materials and union solicitations · t eais ithin the court,ard. or een the whole co urtalrd. could at times be iork reas. he part f the courtyard where White distributed leaflets i, li It , Ark area, t least not hen he was passing out literature, how- eser. Pltt, I , d. a I) i ion ot RJ Rel'noldis oiv,. Inc. . .LR.B., 415 I 2d (X)I (5th (ir. 1969), cited b Respondent is napposite. In that case unilm literature vi as passed out ill the parking lot and i the cafeteria with- ut interference Ihe distribution in question. howeser, was a "truck load- Illg ;ind illlclltle ring arrca 1 i ia path used hb Patio employees to reach the emlplisee parking lot." lhe eidence showed employees ere loading a truck at the dock adjacent to the path where two women emploees were tdlinding and handing ut literature. he wormen refused t nove off of plant propert and cease the distribution as requested h the compan's general miana ger I he emplocees inrisled in the loading stopped and ,satched "the distrihutionl and arunient." he court held. in addition to riliirit thaIt the to wnen were properl discharged for insubordination Ithal the eiploser's "interest in cleanliness. order and discipline in a work Ireli hcle eploees re working justified the general manager's prohibi- hl [ hidhilliig Il that area.'" CLOUIGHERTY PACKING COMPANY 935 on an employer's property.' The Supreme Court recently stated in BRth Israel Ilospial . I.L.R.B., 437 tU.S. 483. 491 493 (1978): We have long accepted the Board's view that the right of employees to self-organize and bargain collec- tively established bv §7 of the NLRA. 29 U.S.. I 157. necessarily encompasses the right effectively to com- municate with one another regarding self-organization at the jobsite. Repubhli A4lilion Corp. v. NIL RB. 324 U.S. 793, 16 LRRM 620 (1945). articulated the broad legal principle which must govern the Board's enforce- ment of this right in the myriad factual situations in which it is sought to be exercised: "[The Board must adjust] the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of em- ployers to maintain discipline in their estab- lishments. Like so many others, these rights are not unlimited in the sense that theN can be exercised without regard to any duty which the existence of rights in others maN place upon employer or em- plo)ee." 324 U.S., 797 798. That principle was further developed in NLRB v. Bah- cock & Wilcox. C(o., 351 U.S. 105. 38 I.RRM 2(001 (1956)., where the Court stated: "Accommodation between lemployee-organization rights and employer-property rightsl must be ob- tained with as little destruction of one as is consis- tent with maintenance of the other." 351 US. at 112. Based on its experience in enforcing the Act, the Board developed legal rules applying the principle of accommodation. The effect of these rules is to make particular restrictions on employee solicitation and distribution presumptively lawful or unlawful under §8(a)( ) subject to the introduction of evidence suffi- cient to overcome the presumption. Thus, the Board has held that restrictions on employee solicitation dur- ing nonworking time, and on distribution during non- working time in nonworking areas. are violative of §8(al I) unless the employer justifies them b a show- ing of special circumstances which make the rule nec- essary to maintain production or discipline.... In Sioddard-OirA Manufacturing (Co., 138 NI.RB 615. 621 (1962), the Board took into account a difference be- tween distribution and solicitation, indicating that a pre- sumption of illegality applies to distribution in nonworking areas. Said the Board: To sum up, we believe that to effectuate organiza- tional rights through the medium of oral solicitation, Ihc distr ibution of the I Iahhngt Sh3 ( ,n111nttce lealrct a Il.el uil- ahls .t cl i protected h, Set 7 I ihe O \l I he e mplo)ee s h cc . h1 llll d Ihe unmmittee hd a righit I, dwtrihble hlieriture I,, heii fel ,ll., uiker See. for ealnmple. Ihc Sint I p'trn. 220 XI Rh I I 11 I1 . aid 1, D)onnI D),,ui/,l ( >at,,l 210 Nt1RB 2(1 l74 R csepontdcl tnt.t dc that the I e Thiint 563 Iealet ;t." P1-leCied L1 It ils dIltrhitCd II 1 '1 ' prite area .t i proper [11" the right of employees to solicit on plant premises must he afforded subject only to the restriction that it he on nonworking time. However. because distribu- tion of literature is a different technique and poses different problems both from the point of view of the emplosees and from the point of view of management. xe believe organizational rights in that regard require only that emploxees have access to nonworking areas of the plant premises. 5. Applxing the foregoing principles in the instant case, we agree with the rial xaminer. as stated above. that the no-distribution rule maintained by the Respondent is presumptively invalid on its face, as ap- plied to employees who may wish to distribute union literature, since its reach is not limited to working time or to the working areas of the plant. We also find that the presumption of invalidity is not overcome by the testimony of ('arson Butcher, Respondent's vice presi- dent. that the rule w\as adopted years ago for the pur- pose of "keep[ingi down the litter . . . [and] fire haz- ards ... in the plant." The mere assertion that a broad no-distribution rule has this purpose hardly proves that it is actually "necessary" for the employer to prohibit union handbilling by his own employees in nonworking areas in order to "maintain production or discipline" (BahcoNA & I i/coo. 351 U.S. 105). Such necessity has not been shown here. While recognizing "working time is for work" (Perton Packin ('orprt. Inc.. 49 NLRB 828 (1943) ). Respon- dent's rule forbidding distribution of union literature bh White while on his hreak to other emplo ees also on break in a nonwork area is. thus, presumptivel 5 invalid. The pre- sumption of illegality was not overcome bh the testimony of Regan. As has been noted. Regan's testimony was not as impres- sive as White's. I have difficulty in believing that the distri- bution of the Fighting 563 leaflet presented the littering problem to the extent Regan claimed. The complaints of the l)epartmrent of Agriculture concerning trash and docu- ments on the plant floor, to which Regan referred, do not appear to ha'e a nexus with White's distribution of leaflets in the courtyard on March 3. But irrespective of whether there was a connection or not. Respondent could have eas- ily regulated the collection of the distributed leaflets with- out barring absolutely the distribution of such union litera- ture. Respondent appears to have been oblivious to an 5 "sanitation" problem arising out of the distribution of other types of literature, such as credit union leaflets re- ceived in evidence as Gieneral Counsel's Exhibit 5. Respon- dent sponsored solicitation of credit union membership during worktime. In addition, gaming pools were operated and charity donations were solicited on company property with Respondent's knowledge. Respondent's rule against distribution of union literature was, thus, discriminator and operated to inhibit communication on behalf of the Fighting 563 C(ommittee. Further, Respondent's rule is am- biguous. Regan indicated that literature could not he hand- ed out in the locker room. Presumabhl\ distribution of the committee leaflet could not be carried out an'where on 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's property at any time by an employee except in the parking lot.9 I find that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, and I shall recommend entry of an order which will require that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. CON(CLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent, by maintaining and enforcing a plant rule prohibiting the distribution of union-related literature by employees on nonworking time in nonworking areas of the plant without prior permission of management, has in- terfered with, restrained, and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 9 In upholding the Board's order against an ambiguous ilo-solicilalllt rule ("against solicitations 'on compan lime and on conilpan property' ") In .I..R. R. Ilarold Mil/r. et o/.. d It I Miller ( haIrles od (otr/ipur . 341 F.2d 870. 874 (2d ('ir. 1965). the court said: The true meaning of the rule might he the subject of grammaticail controversy However. the employees of respondent are not grammari- ans. he rule is at best ambiguous and the risk of ambiguit? must be held against the promulgator of the rule ralher than against the e- ploNees who are supposed to abide b it. Cf. E.sser Inernionul, In.. 211 N LRB 749 (1974). IIt ile event no eceptionls are filed as provided hb Sec. 102.46 of the Rules aund Regulations of the National I.abor Relations Board. the findings. conclusions, and recommended Order herein shall, s provided in Sec. 102.48 iof the Rules aind Regulations. he dopted h the Board and become its findings. conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. ORDER 10 Respondent, Clougherty Packing Company, Los Ange- les, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Maintaining or enforcing any rule requiring prior management approval for employees, during nonworking time and in nonworking areas of the plant, to distribute literature for purposes protected by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Rescind or modify its rule requiring prior manage- ment permission for employees during nonworking time in nonworking areas of the plant to distribute literature for purposes protected by Section 7 of the Act. (b) Post at its Los Angeles, California, plant copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced hs a judgment ,of a United States (Court of Appeals. the words in the notice reading 'Posted by Order of the National I.abor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board."