Mallory Battery Co.

National Labor Relations Board - Board Decisions

Nov 2, 1978

239 N.L.R.B. 204 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mallory Battery Company, a division of P. R. Mallo-
ry & Co., Inc. and Chauffeurs, Teamsters and
Helpers Local Union No. 391, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 11-
CA-7064
November 2, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY. AND TRUESDALE
Upon charges' duly filed by Chauffeurs, Team-
sters and Helpers Local Union No. 391, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, the
Regional Director for Region 11 of the National La-
bor Relations Board, acting on behalf of the General
Counsel of the Board, issued a complaint, as
amended, alleging that Respondent Mallory Battery
Company, a division of P. R. Mallory & Co., Inc.,
violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended (29 U.S.C. § 151, et seq.). Re-
spondent filed an answer to the complaint, as
amended, in which it admitted certain allegations of
the complaint and denied others, including all those
charging it with the commission of any unfair labor
practices.
On June 30, 1978, the General Counsel, the Charg-
ing Party, and Respondent entered into a stipulation
in which they agreed to certain facts relevant to this
proceeding. They also agreed to waive a hearing be-
fore an Administrative Law Judge, the issuance of an
Administrative Law Judge's Decision, and the pre-
sentation of any evidence other than that contained
in the stipulation and exhibits attached thereto. By
order dated August 4, 1978, the Board approved the
stipulation and transferred the proceeding to the
Board. Thereafter, the General Counsel and Respon-
dent filed briefs with the Board.
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 entire record in this
case, including the parties' briefs, and makes the fol-
lowing:
i The original charge was filed on June 14, 1977. An amended charge was
filed on August 5, 1977.
FINDINGS OF FACT
I THE BUSINESS OF TIlE EMPLOYER
Mallory Battery Company, a division of P. R.
Mallory & Co., Inc., has been at all times material a
corporation duly organized under the laws of the
State of Delaware, with facilities located in the State
of North Carolina, including a plant at Lexington,
North Carolina, where it is engaged in the manufac-
ture of batteries. During the past year, Respondent
received at its Lexington. North Carolina, plant
goods and raw materials directly from points outside
the State of North Carolina valued in excess of
$50,000 and, during the same period of time, shipped
directly to points outside the State of North Carolina
products valued in excess of $50,000. Accordingly, in
agreement with the stipulation of the parties, we find
that Respondent is now and has been at all times
material an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act. It will therefore effec-
tuate the policies of the Act to assert jurisdiction in
this proceeding.
ii. THE LABOR ORGANIZATION
Chauffeurs, Teamsters, and Helpers Local Union
No. 391, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Since 1969 Respondent has distributed to its em-
ployees at the Lexington, North Carolina, plant a 17-
page document entitled "Your Future at Mallory."
The document contains the following paragraph enti-
tled "Plant Rule No. 7":
7. OUTSIDE BLSINEss--Solicitations, collection of
funds, selling among employees, pledges, sub-
scriptions, circulation of petitions, distribution
of literature, solicitation of memberships, or
similar activities are not allowed during working
time; nor are such activities on behalf of busi-
ness, charitable, social or fraternal organiza-
tions, or for the employee's private profit al-
lowed on Company property. Special permission
may be granted in certain instances of recog-
nized charities.
Respondent has distributed this document to approx-
imately 656 employees at the Lexington plant since
February 7, 1977, and continues to distribute the
document to its employees.
204
MALLORY BATTERY COMPANY
The General Counsel contends that Plant Rule
No. 7 in Respondent's document is an invalid rule
prohibiting union activity on company property dur-
ing nonworking time and that Respondent's mainte-
nance of the rule constitutes a violation of Section
8(a)(1) of the Act. In support of this contention, the
General Counsel points to the second clause of the
rule, which prohibits solicitation and distribution on
company property "on behalf of business, charitable,
social or fraternal organizations, or for the employ-
ee's private profit," and argues that its terms are suf-
ficiently broad that it may reasonably be foreseen
that employees would not know whether union activ-
ity is prohibited on the premises of the plant during
the employees' nonworking time.
Respondent contends that none of the terms in the
second clause of Plant Rule No. 7 encompass, or
may be construed to encompass, labor organizations
and that the rule is therefore valid. A fortiori, Re-
spondent contends that the maintenance of the rule
does not constitute a violation of Section 8(a)(1) of
the Act.
It has long been held that the organizational rights
of employees require that they be permitted to solicit
on their employer's premises on nonworking time
and to distribute materials on nonworking time in
nonworking areas of the plant.2 The second clause of
the rule at issue herein bans all solicitation and distri-
bution on behalf of certain organizations on the
plant premises. If the clause encompasses labor orga-
nizations, then clearly it violates the above-stated
principle and is unlawfully broad. There is no specif-
ic mention of labor organizations in the clause: thus,
the central question to be resolved is whether the rule
may reasonably be construed by employees to pro-
hibit solicitation or distribution on behalf of labor
organizations. We find, for the reasons stated below,
that it may be so construed.
Fraternal organizations are among the organiza-
tions listed in the second clause of Respondent's
Plant Rule No. 7. A fraternity, or fraternal order, is
defined as "a group of people associated or formally
organized for a common purpose, interest, or plea-
sure: as . . . a usu. organized group of men of the
same class, occupation, interest, or pursuit: company,
guild. fraternal order." 3 A labor organization, as de-
fined by the Act,4 comes within the scope of the defi-
2 Sloddard-Quirk Manufacturing (C. 138 NL RB 615 (1962)
14ebsrer' Third NVew International Dlutionorl, 'nahridged (i. & ( Mer-
riam Co.. (1971)
4 Sec 2(5) reads as follows:
The term "labor organization" means any organization of any kind.
or an) agency or employee representation committee or plan. in which
employees participate and which exists for the purpose. in whole or In
part, of dealing with emplosers concerning grievances. labor disputes.
nition of fraternity in that it is a group of people
(employees of the same occupation) organized for a
common purpose (dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work). Fur-
ther, it is common knowledge among those who regu-
larly deal with labor relations matters that many, if
not all, labor organizations consider themselves to be
fraternal organizations. This is evidenced by the use
of the term "brotherhood" in the title of many
unions, including that of the Union involved herein,
and by the common practice among unions of refer-
ring to fellow members as "brother" or "sister."
Members of such organizations would reasonably as-
sume that they are covered by the term "fraternal
organization" and therefore subject to the prohibi-
tions in Respondent's rule.
Thus, through the use of the term "fraternal orga-
nization," the second clause of Respondent's Plant
Rule No. 7 encompasses labor organizations.5 That
the term may have other meanings, such as a social
club, is of no significance. It is a well-established
principle that ambiguity in a rule is construed against
the maker of the rule.6 Here, the ambiguity must be
construed against Respondent's contention that the
rule does not prohibit employees from engaging in
union organizational activities on Respondent's
premises.
Accordingly, we find that the second clause of Re-
spondent's Plant Rule No. 7 prohibits employees
from soliciting or distributing literature on behalf of
labor organizations and thereby inhibits employees
in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.7 Respondent's maintenance of the
rule, therefore, is a violation of Section 8(a)(l) of the
Act.8
IV. THE EFFE(f7 OF THE UNFAIR PRACTICES UPON
COMMERCE
T he activities of Respondent as set forth above oc-
curring in connection with its operations have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
wages. rates of pay. hours of employment. or conditions of work.
In lighl of this concluslon. we find it unnecessary to reach the General
Counsel's conlention that the terms "business and social organizations" also
encompass labor organizations.
oflrlh .aonufacturing ('omp/an,. 187 NLRB 601 (1970)
Member Murphs bheliees that the emplosees' rights to engage in the
union actisit of soliciting on the emploser's premises during nonworking
time and distributing literature during nonworking time in n-onworking ar-
eas of the employer's premises is also protected by the first amendment to
the ('onst!tution See Unrted Parcel Seriice, Inc. 230 NLRB 1147, fn. 4
(1977).
8 Member Jenkins would additionally find the rule Invalid because it pro-
hibits solicitations during "working time" See the dissenting opinion in
Ess,' Inlernionol/. Inc, 211 NI RB 749 (1974).
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. REMEDY
Having found that Respondent has engaged in vio-
lations of Section 8(a)(l), we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion in order to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mallory Battery Company, a division of P. R. Mal-
lory & Co., Inc., Lexington, North Carolina, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining any rule or regulation prohibiting
its employees from soliciting on behalf of any labor
organization on Respondent's premises during non-
working time or prohibiting the distribution of union
literature in nonworking areas during employees'
nonworking time.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Rescind its Plant Rule No. 7 insofar as it pro-
hibits employees from soliciting on behalf of labor
organizations or distributing union literature on Re-
spondent's premises.
(b) Post at its plant in Lexington, North Carolina.
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the Re-
gional Director for Region 11, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region I 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
9 In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain any rule or regulation
prohibiting our employees from soliciting on be-
half of any labor organization on our premises
during nonworking time or prohibiting the dis-
tribution of union literature in nonworking areas
during employees' nonworking time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL rescind our Plant Rule No. 7 insofar
as it prohibits employees from soliciting on be-
half of labor organizations or distributing union
literature on our premises.
MALLORY BATTERY COMPANY, A DIVISION OF
P. R. MAl.ORY & Co.. INC.
206