Kern's Bakery, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1582 (N.L.R.B. 1965)

1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE -We will notify the above -named employee if serving in the Armed Forces.
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 2023 Federal
Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200.
Kern's Bakery, Inc. and Milk, Ice Cream Drivers and Dairy Em-
ployees Local Union #783, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 9-CA-3299. September 24,1965
DECISION AND ORDER
On June 21, 1965, Trial Examiner Fannie M. Boyls issued her Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices, but, concluding that said
violations are adequately remedied under an outstanding Order
against the Respondent,' recommended that no remedial order be
issued in this case. The Trial Examiner further found that Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint, and, accordingly, recommended that the complaint be
dismissed in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed exceptions and a sup-
porting brief, and Respondent filed a brief in support of the Trial
Examiner's Decision.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Members
Fanning, Brown, and Zagoria].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified below.
In agreement with the Trial Examiner, and for the reasons stated
in her Decision, we find that Respondent violated Section 8(a) (1) of
i lie Act by promulgating and maintaining rules tending to inhibit
erne' oyees from soliciting union membership in working areas or else-
' Kern's Bakery, Ino., 150 NLRB 998.
154 NLRB No. 131.
KERN'S BAKERY, INC. 1583
where on company property during nonworking hours. We disagree,
however, with her conclusion that the Board's Decision and Order in
the earlier case2 obviates the necessity for a remedial order in the
instant case. As the record herein plainly discloses repeated efforts
on the part of Respondent to impede the statutory rights of its
employees by promulgating unlawful no-solicitation rules, we agree
with the General Counsel that issuance of an appropriate remedial
order is necessary herein to effectuate the purposes of the Act.
Accordingly, we shall order Respondent to cease and desist from
promulgating or maintaining any rules which prohibit or tend to
inhibit employee solicitation of union membership on company prop-
erty during nonworking hours, and to post an appropriate notice.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Kern's Bakery, Inc., London, Kentucky, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Promulgating and maintaining any rule prohibiting or tend-
ing to inhibit employees from soliciting union membership on com-
pany property during nonworking hours.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which is necessary to effec-
tuate the polices of the Act.
(a) Post at its bakery in London, Kentucky, copies of the attached
notice marked "Appendix." 3 Copies of said notice, to be furnished
by the Regional Director for Region 9, shall, after being duly signed
by the Company's representative, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 9, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
2 Ibid.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals, Enforcing an Order".
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended, we hereby notify our employees that :
WE WILL NOT promulgate or maintain any rule prohibiting or
tending to inhibit employees from soliciting union membership
on company property during nonworking hours.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.
KERN'S BAKERY, INC.,
Respondent.
Dated---------------- By-------------------------------------
(Representative ) (Title)
The notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, Room 2023, Federal Office Building, 550 Main Street,
Cincinnati, Ohio, Telephone No. 684-3627.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 25, 1964, and an amended charge filed on Septem-
ber 17, a complaint was issued on October 7, 1964. This complaint, as amended at
the hearing, charged the Respondent, Kern's Bakery, Inc., with having violated
Section 8(a)(1) and (4) of the National Labor Relations Act. Respondent filed an
answer, denying that it had engaged in any of the unfair labor practices alleged.
A hearing was held before Trial Examiner Fannie M. Boyls, in London, Kentucky,
on January 12 through 15, 1965. At the conclusion of the hearing, Respondent's
counsel argued orally before me and thereafter filed a brief which I have carefully
considered. Although given an opportunity to do so, neither counsel for the General
Counsel nor for the Union argued orally or filed a brief.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Kentucky corporation engaged in the mixing, baking, and selling,
both wholesale and retail, of bread and rolls at its plant in London, Kentucky. Dur-
ing the year preceding the issuance of the complaint, which is a representative period,
Respondent received directly from points outside the State of Kentucky materials,
products, and supplies valued in excess of $50,000, and during the same period had
gross sales in excess of $500,000 I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
KERN'S BAKERY, INC.
II. THE LABOR ORGANIZATION INVOLVED
1585
It was stipulated at the hearing, and I find, that Milk, Ice Cream Drivers and Dairy
Employees Local Union #783, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
Some of the charges in this case grow out of or are a sequel to matters litigated
in prior unfair labor practice cases which were heard before another Trial Examiner
in February and May 1964 (Cases Nos. 9-CA-3015 and 9-CA-3115). Those cases,
which were later consolidated, involved, inter alia, the validity of a no-solicitation
rule and whether an employee, Cox, had been discriminatorily discharged.' The
no-solicitation vile, which was found by the Trial Examiner and Board to be invalid,
was amended prior to the hearings in those cases but the validity of the amended
rule was not litigated at those hearings That amended rule as well as a subsequent
amendment to the rule was litigated in the hearing before me. At the hearing in
Case No. 9-CA-3115 wherein the alleged discriminatory discharge of Cox was
litigated, an employee, Eugene Vaughn, testified in support of Cox and adverse to
Respondent, and it is alleged in this case that Respondent unlawfully discharged and
otherwise discriminated against Vaughn because he gave testimony adverse to
Respondent in the prior case.
This case involves the following issues which grew out of or are related to the
prior cases*
1. Whether the no-solicitation rules maintained by Respondent and distributed to
its employees subsequent to the rule found unlawful in the prior case are also unlaw-
fully restrictive.
2. Whether Respondent unlawfully interrogated an employee in connection with
preparing its defense in one of the prior cases.
3. Whether Respondent discharged and otherwise discriminated against Vaughn
because he gave testimony adverse to Respondent in one of the prior cases.
Also involved in this case is the issue:
4. Whether a wage increase granted by Respondent to its employees about July 4,
1964, during the pendency before the Board of a request by Respondent for a review
of an order of the Regional Director setting aside an election, was unlawful.
B. The no-solicitation rules
The no-solicitation rule alleged in the complaint to be unlawful was included in
a revised employees' handbook issued and distributed to Respondent's employees in
January 1964. It appears as rule 21 under the heading, "Rules to Protect You," and
reads as follows (Respondent's Exhibit No. 16(3) )
Some causes for termination of employment are:
21. Solicitation without permission on company property of employees or by
employees on company work time.
On July 20, 1964, this rule was again revised. This last revision, as posted on
Respondent's bulletin boards in July and as appearing in a November 1, 1964, revi-
sion of the employees' handbook reads as follows (Respondent's Exhibit No. 16(4) ):
Some causes for termination are:
* * * * * * *
21. Solicitation without permission in working areas on company property
of employees or by employees on company work time.
What Respondent was seeking to accomplish by these rules is not clear. The rules
seem somewhat ambiguous. Any ambiguity, however, must be resolved against the
promulgator of the rules rather than against the employees who are supposed to
'The complaint in this case was Issued subsequent to the Trial Examiner ' s Decision
but before the Board's Decision (150 NLRB 998) in those consolidated cases.
206-446-66-vol. 154-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abide by them. N.L.R.B. v. Harold Miller, Herbert Charles, etc, d/b/a Miller
Charles & Co., 341 F. 2d 870, 873-874 (C.A. 2). Both rules appear to prohibit the
employees, during nonworking time, from engaging in the solicitation of employees
for the Union, at least in working areas of the plant, without Respondent's permission
The limitations generally applicable to the promulgation or maintenance by employ-
ers of no-solicitation rules, which were stated by the Board in Peyton Packing Coin-
pany, Inc., 49 NLRB 828, 843-844, and quoted with approval by the Supreme Court
in Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803, are as follows:
The Act, of course, does not prevent an employer from making and enforcing
reasonable rules covering the conduct of employees on company time Work-
ing time is for work. It is therefore within the province of an employer to
promulgate and enforce a rule prohibiting union solicitation during working
hours. Such a rule must be presumed to be valid in the absence of evidence that
it was adopted for a discriminatory purpose. It is no less true that time outside
working hours, whether before or after work, or during luncheon or rest periods,
is an employee's time to use as he wishes without unreasonable restraint, although
the employee is on company property. It is therefore not within the province
of an employer to promulgate and enforce a rule prohibiting union solicitation
by an employee outside of working hours, although on company property. Such
a rule must be presumed to be an unreasonable impediment to self-organization
and therefore discriminatory in the absence of evidence that special circumstances
make the rule necessary in order to maintain production or discipline.
Accordingly, in the absence of special circumstances not shown in this case, Respond-
ent may not prohibit employees from soliciting for the Union in working areas or
elsewhere on company property during nonworking time, whether before or after
work, or during lunch or rest periods. And in this connection, it makes no difference
that the employer may be paying the employee for his nonworking time. N.L.R.B. v.
Monarch Machine Tool Co., 210 F. 2d 183, 187 (C.A. 6), cert. denied 347 U S. 967;
N.L.R.B. v. Essex Wire Corporation d/b/a Essex Corporation of California, 245
F. 2d 589, 593 (C.A. 9).
Examining both Respondent's rules described above in the light of these principles,
it would appear that insofar as those rules prohibit employees during nonworking
time from soliciting their fellow employees in working areas or elsewhere on com-
pany property without Respondent's permission, they must be considered an unrea-
sonable impediment to self-organization and therefore in violation of Section 8(a)
(1) of the Act. The fact that Respondent may grant an employee permission to
engage in such solicitation does not render the rule lawful for, as pointed out by the
Board in the prior unfair labor practice case against Respondent (150 NLRB 998),
the rule was calculated to require a union adherent to disclose his sympathies to
management in order to request the latter's permission to solicit memberships. This
disclosure would naturally tend to inhibit him from exercising his rights protected
by the statute. Moreover, an employee may not lawfully be required to secure his
employer's permission to do that which the law gives him the right to do anyway.
Respondent argues that it has not in fact applied or enforced its no-solicitation
rules in an unlawful manner and that no unfair labor practice finding may therefore
be based on the promulgation, distribution, or maintenance of such rules. These
rules, however, appear in the employees' handbook distributed by Respondent to all
its employees and since they are listed as "causes for termination of employment," it
is a reasonable inference, and I find, that they serve as an effective restraint upon
employees who might wish to solicit fellow employees in behalf of the Union during
nonworking time. It is accordingly found that Respondent's conduct in maintain-
ing and giving effect to the no-solicitation rules here involved was in violation of
Section 8(a)(1) of the Act.2
C. The wage increases
On March 6, 1964, in a Board-conducted election, a majority of Respondent's
employees in the appropriate bargaining unit voted against representation by the
2 Respondent states in its brief that it posted a notice in compliance with the Board's
Order in the prior cases, informing its employees that it would "not prohibit the solicita-
tion of union memberships on company property during nonworking hours" and that
"the rules complained of by the General Counsel in this case have likewise been amended
to conform with the order of the Board." The record in this case contains no evidence
to this effect and the findings herein may properly be made only on the basis of the
record evidence. Further treatment of Respondent's contention in this respect is set forth
in the section of this Decision, infra, entitled "The Remedy."
KERN ' S BAKERY, INC. 1587
Union (Case No. 9-RC-5671 ). The Union filed objections to the election based
upon conduct of Respondent which allegedly interfered with a free election, and
the Regional Director set aside the election . Respondent thereupon filed with the
Board a request for review of the Regional Director 's action and this request was
still pending before the Board at the time of the hearing in this case.
In a letter dated July 3, 1964 , Respondent informed all its hourly rated employees
that as of the workweek beginning July 4, they were receiving an across -the-board
increase of 7 cents an hour. It also informed them that adjustments were being
made in the pay of a few categories of employees which would result in an additional
increase for them.
It had been the practice of Respondent for many years to review annually the
wages of all its employees , not only those in the London plant here involved , but also
in its other plants which are located in Knoxville and Bristol , Tennessee, and in
Lynchburg , Virginia . This was usually done about July of each year and for many
years, except in 1961 when Respondent 's earnings did not warrant it, these reviews
had resulted in general wage increases for the employees and wage adjustments if
Respondent deemed the latter appropriate . The general wage increases in July 1964
were granted to the hourly rated employees in all Respondent 's plants, not just to
those in London , and they were no different in their nature from those granted in
previous years.
In these circumstances , I find no substance to the General Counsel's contention
that the granting of these wage increases at the London plant during the pendency
before the Board of the representation matter had the purpose or effect of undermin-
ing the Union's status , or that Respondent 's action in this regard was in any way
unlawful.
D. The alleged unlawful interrogation of employee Eugene Vaughn regarding
testimony to be given in Case No. 9-CA-3115
Shortly before the hearing in the prior case involving an allegation that Respond-
ent had discriminatorily discharged employee Cox, General Manager Hart asked all
Respondent 's employees who he believed might know something about Cox's work
performance whether they would be available as witnesses if called. Cox had
worked on the tail -end section of the Pan-O-Mat machine , next to the section oper-
ated by Vaughn.
Vaughn testified that on the day before the hearing involving Cox-at which he
had been subpenaed by the General Counsel to testify-Hart came to his machine and
asked Vaughn, "Will you give us statements for the Company about why Cox was
discharged ," and that Vaughn replied: "I don't have any statement to give . . . . I
don't think Cox had any kind of a chance since he started on this new job until he
was fired. I was told to make him work hard on it." According to Vaughn, Hart
then stated, "You know he didn't do his work right here, and he couldn ' t even box
bread." When Vaughn remarked that he knew nothing about Cox's breadboxing,
Hart walked away.
Hart, although testifying that he could not remember exactly what was said on the
occasion about which Vaughn testified, denied that he ever asked Vaughn to give
a statement for the Company and I credit this denial. I am satisfied , however, that
Hart asked Vaughn if he would be available as a witness if Respondent should need
him and that Vaughn explained why he would not make a good witness for Respond-
ent. Nevertheless , I am not convinced that Hart's interrogation of Vaughn went
beyond what was reasonably necessary in preparing Respondent 's defense to the
unfair labor practice charge against it and Vaughn knew that the interview was in
connection with Respondent's preparation of such defense . Joy Silk Mills, Inc. v.
N.L.R.B ., 185 F . 2d 732, 743 (C.A.D.C.), cert. denied 341 U .S. 914.
E. The alleged discriminatory treatment of employee Vaughn
At the hearing in late May 1964, involving , inter alia, the alleged discriminatory
discharge by Respondent of employee Cox, Eugene Vaughn gave testimony (dis-
credited by the Trial Examiner in that case) as to certain statements by his foreman,
Wyatt, which would tend to support the allegations of the complaint . The General
Counsel, in the instant case, contends that because of Vaughn 's testimony in the prior
case, Respondent discriminated against him in various ways regarding his terms and
conditions of employment and finally discharged him on August 24 . The record, in
my view, does not sustain any of these allegations.
It is alleged that following Vaughn's testimony during the latter part of May,
Respondent failed to assign him overtime work on his regular day off, although it did
assign such overtime work to other employees on their regular days off. The record
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows, however, that, in accordance with Respondent's policy of fairly distributing
overtime work, Vaughn received substantially the same amount of overtime as
other employees, a fact which Vaughn did not dispute; that Vaughn never requested
overtime work on his regular day off rather than on the days he normally worked, as
some of the other employees did, and that Respondent had no reason to assume that
Vaughn was not satisfied with the basis on which his overtime was distributed.
It is alleged that Respondent discriminated against Vaughn in July by failing to
reclassify his job for a higher rate of pay when it reclassified certain other jobs.
Vaughn was a pansetter on the Pan-O-Mat machine, a job which Respondent consid-
ered as requiring less skill, or at least as being less onerous than that of the pan-
stackers, oven helpers, qualified relief or break men (as distinguished from janitors
who sometimes relieved in an emergency), and Am-Flo operators, the employees
whose pay rate classifications were adjusted upwards when the general increases were
announced on July 3. Vaughn appears to have disagreed with Respondent's judg-
ment in rating certain jobs as more onerous or as requiring more skill than the job
he performed I am convinced, however, that Respondent was not motivated by any
desire to discriminate against Vaughn in the evaluation of these jobs and in the fix-
ing of pay for them. As vacancies occurred, Respondent put jobs up for bidding and
awarded them on the basis of seniority to those applicants whom it deemed qualified.
Vaughn had not bid for any of these higher paying jobs prior to his discharge.
The General Counsel also contends that following Vaughn's testimony in the prior
complaint case, and because of it, his foreman, Wyatt, as well as his two fellow
employees on the Pan-O-Mat machine harassed him by sometimes failing to tell him
about changes in orders until after he had obtained the wrong kind of pans and that
it then became necessary for him to work harder by exchanging those pans for the
correct kind of pans. According to the credited testimony of Foreman Wyatt and
of Vaughn's fellow workers on the Pan-O-Mat machine, James Farris and Eugene
Bechner, however, it was customary both before and after the prior hearing for Fore-
man Wyatt to place each day's orders on the vacuum cleaner on Bechner's section of
the machine and for him to note on the order sheet during the day any changes
required by special orders which may have come in. Wyatt sometimes also men-
tioned orally to Bechner or to the other two operators the special orders to be run
but he did not necessarily do so. It is the responsibility of Bechner at the tail end of the
machine to see that the proper orders are filled, and if Farris or Vaughn did not
notice the changes in the order sheet. he would tell them about the changes. Vaughn
worked in the middle section of the Pan-O-Mat machine and the order sheet was vis-
ible from where he worked. Farris worked on the front end. He testified that most
of the time when he sees Foreman Wyatt come to the machine with an order, he goes
to the other end of the machine to see it. Both Farris and Bechner testified that
occasionally they had noticed Vaughn pull the wrong stack of pans toward the
machine and then have to exchange that stack for the proper kind of pans when his
attention was called to the mistake. They testified, however, that this is not an
unusual mistake for a pansetter to make. Bechner testified that he had made the
same error when he performed the job Vaughn was performing, and Farris testified
that he has seen the present pansetter, Bristol Gay, do the same thing I am not
convinced on the basis of all the evidence that Vaughn was treated any differently
on the job by Foreman Wyatt or by Farris and Bechner following his testimony in
the prior case. But even if Farris or Bechner treated him with less consideration,
such conduct may not be attributed to Respondent.
Finally, the General Counsel contends that Respondent discriminated against
Vaughn because of his prior testimony by failing to give him an opportunity to discuss
with Plant Manager Hart a grievance about his wage rate and by discharging him
when he insisted upon talking to Hart. On August 17, Vaughn talked to Foreman
Wyatt about his dissatisfaction over getting only the general wage increase on July 4,
and told Wyatt that he wanted to talk to General Manager Hart as soon as possible
to get the matter settled.3 Wyatt replied that he would arrange the meeting but about
30 minutes later informed Vaughn that Hart was out of town.
On August 24, Hart returned from his trip. About 10 or 30 minutes after reporting
for work at 8 a.m. that day, Vaughn told Foreman Wyatt that he wished to talk to
Hart as soon as he could in order to get his pay rate problem settled. Wyatt agreed
to arrange the meeting and thereafter relayed Vaughn's request to Superintendent
Johnson. Johnson instructed Wyatt to let Vaughn go to Hart's office as soon as a
3 Hart had informed Vaughn on a previous occasion that his door was always open to
employees who wanted to talk to him and Hart testified that this was his policy
KERN'S BAKERY, INC. 1589
relief man could be obtained to take over Vaughn's work.4 About an hour later,
during a changeover, Vaughn went to Wyatt's office and reminded him that he wanted
to see Hart as soon as possible. Wyatt replied that Vaughn could go as soon as
Wyatt could get someone to relieve him on his job. There were two regular relief
men qualified to perform all the duties on the Pan-O-Mat machine. One of them
was then filling in for Bechner who was absent from his work that day, and the other
was not due to report for duty until 11 a.m. Although in emergencies Respondent
has taken the janitor or some other employee off his regular job to do relief work on
the Pan-O-Mat, Wyatt did not on August 24 relieve them of their regular work in
order to enable Vaughn to see Hart immediately.
At about 9:45 a.m. when Wyatt brought an order to the Pan-O-Mat, Vaughn told
him that he could get someone to do Vaughn's work or do it himself for Vaughn was
going to see Hart. Vaughn thereupon walked off to Hart's office, leaving his machine
running. Wyatt instructed Farris at the head of the machine to shut the machine
down. About 10 minutes later, Wyatt obtained the janitor to work in Vaughn's place
and production was started again. Wyatt also reported the incident to Superintendent
Johnson.
In the meantime, Vaughn had a conference with General Manager Hart in the
latter's office, which lasted for about 15 minutes. He complained to Hart about
receiving only $1.63 an hour at his work and expressed the belief that he was being
treated unfairly by not being paid $1.77 an hour, the rate paid for several other jobs
which Vaughn thought were comparable to his. Hart explained that Vaughn's job
was considered easier or less onerous than the higher rated jobs He offered Vaughn
a hot panstacker's job which paid $1.77 an hour and for which Vaughn's seniority
entitled him, but Vaughn declined that offer because of the onerous nature of the
work. There was then some discussion about a relief man's job and Vaughn's qualifi-
cations for it. Hart indicated that Vaughn would be considered for that type of
work when a vacancy was posted. At the conclusion of the interview, Hart sug-
gested that Vaughn see Superintendent Johnson and ask if Johnson had any other
kind of job for him which would pay $1.77.
Vaughn then sought out Superintendent Johnson and told him that Hart had sug-
gested that he talk to Johnson about a job which would pay more than Vaughn's pan-
setting job. Johnson replied that the only job he had open was a pan-stacking job.
Vaughn declined that job and walked away. Johnson called after him, "I want to
talk to you," intending to ask why Vaughn had walked off his job before a relief man
could be obtained, but Vaughn apparently did not hear him.
Vaughn returned to his machine and relieved the janitor who had been working in
his place. Two or three minutes later, Johnson appeared and asked Vaughn why he
had walked off his job. Vaughn explained that he had told Foreman Wyatt several
times that he wanted to see General Manager Hart and that Wyatt had kept putting
him off. Johnson then stated, "You know you do not have a job if you walk off like
that, don't you." Vaughn replied, "If you are going to treat me like all hell, like you
were in the past, why I wouldn't turn my hand over for the difference " Johnson
responded, "Well, if that's the way you feel about it, you may not have a job," and left.
Johnson then sought out General Manager Hart and asked the latter whether he
knew that Vaughn had walked off his job before any relief man had been obtained
in order to see Hart. Hart replied that he had not known that. Johnson recom-
mended, and Hart agreed, that, under the circumstances, Vaughn should be dismissed
and Johnson did dismiss him.5
Superintendent Johnson had been transferred from Respondent's Lynchburg, Vir-
ginia, plant to the London, Kentucky, plant only about 3 weeks before Vaughn's
discharge. According to his credited testimony, he did not know about Vaughn's
testimony in the prior case until after charges in this case were filed. His recom-
mendation that Vaughn be discharged could not therefore have been based upon the
fact that Vaughn had theretofore testified adversely to Respondent.
The General Counsel contended at the hearing that in discharging rather than
merely reprimanding Vaughn for leaving his job to talk to Hart under the circum-
stances above related, Respondent was failing to abide by the provision of the employ-
ees' handbook which states that three written reprimands within a 12-month period
for matters such as "failing in any way to comply with company rules" would subject
d Except for about a 2-minute interval during a changeover on orders, the pansetting
which Vaughn was doing cannot be interrupted without shutting down the entire Pan-0-
blat machine, thereby interfering with the work of the other two Pan-0-Mat operators
and stopping production.
5 There is no substantial dispute as to the essential facts set forth above in this sub-
section. The findings are based upon the credited testimony of Johnson, Wyatt, IIart,
and Vaughn.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee to dismissal. The record shows that Vaughn had not even had one
written reprimand. Respondent contends, however, that the provision concerning
reprimands applies only to minor or unintentional infractions of company rules and
not to willful violations such as those engaged in by Vaughn.6 This provision regard-
ing reprimands and a list of 24 rules in the employees' handbook, the infraction of
which is said to constitute cause for termination of employment, appear to be confus-
ing if considered as guides for determining whether employees will merely be repri-
manded or otherwise disciplined for infraction of company rules. However, even
if Respondent did not follow what might be considered a correct interpretation of the
provisions of the handbook, this fact would not prove that Respondent was discrimi-
natorily motivated in discharging Vaughn.
Vaughn appeared to be an overly sensitive and hot-tempered employee and I have
no doubt that he sincerely believed that he was being mistreated in various ways
subsequent to his testimony in the case involving employee Cox. Nevertheless, the
record does not warrant a finding that he was in fact discriminatorily treated. Nor
does it warrant a finding that he was denied the right to talk to General Manager Hart
on August 24. The matter about which he wished to consult Hart was not of such an
urgent nature as reasonably to excuse him for walking off his job prior to the arrival
of a regular relief man, or for his insubordinate conduct toward Foreman Wyatt. I
am convinced from all the testimony, and find, that Vaughn was discharged for
cause and not because of his prior testimony.
IV. THE REMEDY
There is now outstanding against Respondent a Board order in Cases Nos. 9-CA-
3015 and 9-CA-3115 (150 NLRB 998) which requires Respondent to cease and
desist from prohibiting the solicitation of union membership on company property
during nonworking hours, and to post an appropriate notice. That order is broad
enough to cover the violation found in this case. Accordingly, whether or not
Respondent has posted the notice required in that case and revised its no-solicitation
rule to conform to that order-as Respondent says in its brief it has done-no useful
purpoEe would be served by again issuing a cease and desist order and requiring
another notice to be posted. Compliance with the order already issued would remedy
the violation herein found. There is therefore issued the following:
CONCLUSIONS OF LAW
1. By maintaining and giving effect to a no-solicitation rule which prohibits
employees from soliciting for the Union during nonworking time, except with
Respondent's permission, Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the Act, in viola-
tion of Section 8 (a) (I).
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 8(a)( I) of the Act.
3. The General Counsel has not established by a preponderance of the evidence
that Respondent discharged or otherwise discriminated against employee Vaughn in
violation of Section 8(a) (4) of the Act, or that it has violated Section 8(a) (1), except
in the respect above mentioned.
RECOMMENDED ORDER
It is hereby ordered that Respondent's motion to dismiss the complaint be, and it
hereby is, granted, and the complaint is accordingly dismissed.
6 Referring to rule 5 which covers "Walking off the job" and rule 6 which covers
"Insubordination."
A. Joseph Faro d/b/a Yankee Lobster Co. and Seafood Workers
Union, ILA, Local 2, Series 1572, AFL-CIO. Case No. 1-CA-
4545. September 24,1965
SUPPLEMENTAL DECISION AND ORDER
On October 14, 1964, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent
154 NLRB No. 133.