Mallory Battery Co.

National Labor Relations Board - Board Decisions

Jun 18, 1969

176 N.L.R.B. 777 (N.L.R.B. 1969)

MALLORY BATTERY COMPANY
Mallory Battery Company and Communications
Workers of America , AFL-CIO. Case I 1-CA-3719
June 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 26, 1969, Trial Examiner A. Bruce
Hunt issued his Decision in the above-entitled case,
finding that Respondent had engaged in certain
unfair labor practices but recommending that the
complaint be dismissed in its entirety. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief and
Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner: This proceeding, in
which the charge was filed on August 30, 1968, and the
complaint was issued on October 21, 1968, involves
allegations that the Respondent, Mallory Battery
Company, Lexington, North Carolina, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
29 U.S.C., Sec. 151, et seq. On December 5, 1968, I
conducted a hearing at Lexington, North Carolina, at
which all parties were represented. Subsequently, briefs
were received from the General Counsel and the
Respondent, and have been considered. The Respondent's
motion to dismiss is granted. Upon the entire record and
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT
777
Mallory Battery Company, a Delaware corporation,
operates a plant in Lexington, North Carolina, where it
manufactures batteries. The Respondent annually ships
products valued in excess of $50,000 directly to points
outside North Carolina. There is no dispute, and I find,
that the Respondent is engaged in commerce within the
meaning of the Act.
H. THE UNION
Communications Workers of America , AFL-CIO, is a
labor orgainzation which admits to membership employees
of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
During 1968 , the Respondent had about 600 employees
at the plant . During May of that year , the Union began
organizational activity . Our issues are (1) whether , during
August, one supervisor , Cyril Hudak , invalidly
interrogated and threatened one employee, Doris
Williams, and (2) whether , before and after October, the
Respondent maintained an invalid rule prohibiting union
activity on company property during nonworking time.
B. The Conversation Between Hudak and Williams
During 1967, the Respondent issued to its supervisory
employees copies , of a booklet containing (1) rules
concerning conduct by supervisors during an
organizational campaign, and (2) "basic principles of
supervision whether or not a union is concerned." On
May 31, 1968, after the union activity began, a meeting of
supervisors was held and the contents of the booklet were
reviewed by management. The booklet, which was not
distributed to employees or, insofar as appears, called to
their attention, recites in part:
The same law [NLRA], which guarantees to the
employer the right of expressing his opinion about
unions, also guarantees to employees the right to
organize a union. We would certainly never interfere
with anyone's right to do this. At the same time, we
need not hesitate in stating our honest opinion as to
why we believe a union is not needed in this instance.
The booklet advised supervisors that:
(1) You can - and should - explain Company
Policies and working conditions.
(5) You can tell employees why you think they
should not join any union at this time: This is a very
important right. You can tell them about the
advantages you believe they have in discussing matters
directly with the Company.
The booklet advised additionally that:
(1) You cannot warn or even hint that you will take
any action against any employee for joining a union.
* * * * *
(3) You cannot threaten or coerce an employee to
compel him to vote against a union.
176 NLRB No. 108
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) You cannot interfere in any way with the
employees' rights under the law to join , form or assist
any union.
(5) You cannot ask employees whether or not they
have joined the Union or how they propose to vote.
On August 26, 1968, Williams attended a union
meeting at which small badges , worded "I'm For The
C.W.A.," were distributed to persons in attendance. On
the next day, Williams attached her badge to the collar of
her clothing and wore it in the plant . Williams ' supervisor,
Hudak, walked by her place of work, noticed the badge,
and stopped to initiate a conversation . The testimony of
the two individuals concerning what was said differs
sharply. According to Williams, Hudak asked where she
had obtained "that flashy badge ," to which she responded
by saying that he knew the answer and by asking whether
he would "like to have one ." Williams testified further
that Hudak answered her question in the negative and
then said to her that she had attended the union "meeting
last night ," that she acknowledged having done so, that
Hudak asked whether less than 50 persons had attended,
that she answered that the number was higher, that he
asked "[h]ow many more?", and that she replied that she
had not counted the number . Next, according to Williams,
Hudak asked , "If the union gets in, what are they going
to want?", to which Williams replied that the subject
would be covered by a contract , and Hudak then asked,
"Is it more money?" Williams replied , so she testified,
that wages "will probably be high on the list," which
prompted Hudak to ask whether she really thought that
the Union could obtain higher wages , and she answered,
"Well, there is one thing for sure , it can ' t get us any less."
Continuing with Williams ' version, Hudak then said that
if the Union should succeed in organizing the employees,
they would lose their "good insurance ," paid vacations,
retirement rights, and Christmas bonus , and that they
would have to pay both union dues and assessments to
build a union hall. Williams ' testimony is weakened by the
fact that on September 10, 1968, just two weeks after the
conversation with Hudak , Williams gave an affidavit to
one of the Board ' s Field Examiners in which she
purported to relate the entire conversation with Hudak,
but the affidavit does not attribute to Hudak any
reference to insurance and vacations . Turning to Hudak's
version of the conversation , he testified that he noticed the
badge worn by Williams but that he was across a table
from her , too far away to read the lettering on it. He
testified further that he asked Williams, "Dot, where did
you get that fancy button?", to which she responded, "Cy,
this is a union button. Would
you like to have one?", and that his answer was, "No,
I'm sorry, I can ' t wear it . I'm a Republican." According
to Hudak , nothing else was said . I do not believe that the
conversation was as brief as described by Hudak. On the
other hand , I believe that Williams exaggerated in giving
her testimony .' The truth lies somewhere in Williams'
version . It is unnecessary , however , to determine exactly
what was said because , in the light of all the facts in this
case, this isolated conversation between one supervisor
and one of about 600 employees does not warrant a
remedial order.
'Portions of Williams' testimony on another subject are also
contradicted by testimony for the Respondent . Such testimony concerned
the alleged solicitations of orders for products , including candy, by
employees in violation of the rule discussed below. I believe that it is
unnecessary to discuss the testimony concerning the rule except to the
extent recited hereinafter.
C. The Rule Prohibiting Certain Activity on
Company Property
During 1960, operations began at the plant. During
1961 or 1962, the Respondent posted plant rules at 3
places inside the plant. The poster, approximately 16
inches long by 12 inches wide, contained 15 printed rules.
Rule 7 read as follows:
OUTSIDE BUSINESS - Solicitations, collection of
funds , selling among employees , pledges, subscriptions,
circulation of petitions, distribution of literature,
solicitation of memberships or similar activities are not
allowed on Company property. Special permission may
be granted in certain instances of recognized charities.
During 1966, the Respondent caused to be printed a
booklet for employees. Two of the 14 pages in the booklet
are devoted to the plant rules . A copy of the booklet was
given to each newly hired employee.' Williams, who was
hired during 1967, testified that she was given a copy of
the booklet by Don Sharpe, the personnel director at the
plant , who pointed out rule 7 and told her that "there
were to be no solicitations or that the employees were not
supposed to sell things in the plant or on the plant
property or take orders for anything, things of that
nature." The General Counsel contends that the rule was
sufficiently broad to prohibit solicitations of union
memberships on the premises of the plant during the
employees' nonworking time. Kern's Bakery, Inc., 150
NLRB 998, 1000-01. There is no evidence that rule 7 ever
served as a deterrent to the employees' exercise of that or
other Section 7 rights, however, and the charge in this
case , which merely recites the wording of Section 8(a)(1),
does not refer to the rule. On or about September 22,
1968, the Field Examiner assigned to the case talked with
counsel for the Respondent and advised the latter that the
validity of the rule would be an issue in the case. That
advice prompted the Respondent to act. On October 2, a
notice over the signature of the plant manager was posted
on bulletin boards in the plant. It is typewritten, double
spaced, and reads:
NOTICE
I am surprised to find that there might be some
misunderstanding with respect to Rule 7 on Page 12 of
the Employees Handbook and Rule 7 posted on the
bulletin board.
Because of this , I want to make it clear that neither
of those [identical ] rules relates in any way to those
solicitations and distributions which are legal under the
National Labor Relations Act. The company and, I
believe, most of the employees have so understood it in
the past. We want to be sure everyone understands it in
the future.
On the day the notice was posted, the Respondent
ceased giving to newly hired employees copies of the
booklet mentioned in this section . The remaining copies,
with one exception, were destroyed, and the copy that was
retained was altered by the removal of the page on which
rule 7 appeared . That copy is used by the personnel
director in discussing the plant ' s policies with new
employees. He was instructed by the plant manager to say
to such employees , in lieu of referring to rule 7 , that the
The initial question on cross-examination of John A. Grandolfi, the
plant manager, and his response thereto, indicate that a similar or like
booklet containing rule 7 was in use prior to 1966.
MALLORY BATTERY COMPANY 779
selling of articles in the plant was prohibited , and there is
no evidence that he failed to follow the instruction. At the
time of the hearing , a new booklet had not been printed.
Five days after the above notice was posted , the posters
that embodied the plant rules were removed . New posters
containing the rules were posted in all places at which the
earlier rules had been posted . Rule 7 reads as quoted
above with the addition of the following sentence: "This
paragraph is not intended to refer to those solicitations
and distributions which are protected under the National
Labor Relations Act." The new posters are as large as the
earlier ones , about 16 inches by 12 inches , but there are
certain differences . The original posters were pink in color
with a white insert upon which the rules were printed in
black. The new posters are white with the rules printed in
black . Additionally, the original posters commenced
"FOR YOUR PROTECTION" in large red type,
followed by a second line in smaller black letters reading:
"PLANT RULES." The new posters are headed
"PLANT RULES" in large black type beneath which
appears in smaller red type: "FOR YOUR
PROTECTION." I find that the change in format was
likely to catch the eye of any employee who was familiar
with the original posters.
The General Counsel , citing Kern 's Bakery, supra, and
other cases , correctly contends that rule 7 as originally
written violated Section 8(a)(l). He contends also that the
invalidity was not cured by the revision of that rule
because ( 1) the explanatory sentence added to it "was
ambiguous and legalistic in nature ", and (2) the
Respondent ' s efforts to bring the revised rule to the
attention of the employees should have included individual
letters or oral remarks instead of having been limited to
typewritten notices and new printed posters . I find that
there was adequate publication of the revised rule, but
that the revision is not meaningful to employees. The
addition of the explanatory sentence ("This paragraph is
not intended to refer to those solicitations and
distributions which are protected under the National
Labor Relations Act") places upon employees the
unwarranted burden of having to seek the advice of
persons who are knowledgeable in labor law in attempts
to ascertain the types of union activity not prohibited by
the revised rule. The Respondent may not shift to its
employees a burden that is properly its own . It is the
Respondent' s obligation to revise Rule 7 so that its
employees can understand the types of union activity in
which they may engage on the Respondent' s property
during nonworking time without fear of disciplinary
action.
Although I have concluded that the revision of the rule
did not cure its invalidity , I shall not recommend an order
against the Respondent. The revision may have been made
in a sincere , although erroneous , belief that it would
remove the invalidity . In this case of minimal unfair labor
practices in a plant of 600 employees, the Respondent
should be given an opportunity to prove its good faith. If,
after a reasonable period of time, the Respondent has not
revised Rule 7 in the light of the last sentence in the
paragraph next above, the Respondent may face the
.prospect of another charge and complaint.
I recommend that the complaint be dismissed.