Motorist Insurance Agency, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 989 (N.L.R.B. 1970)

MOTORIST INSURANCE AGENCY, INC. ; 989
Motorist Insurance Agency, Inc., Motorist Mutual Insur-
ance Company and Motorist Life Insurance Company
and Office and Professional Employees International
Union , Local -333, AFL-CIO. Case 9-CA-5191
June 2, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 6, 1970, Trial Examiner Phil W. Saunders
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety,
as set forth in the attached. Trial Examiner's Decision.
Thereafter, the General Counsel filed limited exceptions
to the Trial Examiner's Decision and a supporting brief.
The Respondent filed a brief in answer to the General
Counsel's limited exceptions.
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 con-
nection with this case to a three-member panel.
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 herein 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 only insofar
as they are consistent with this Decision and Order.
The General Counsel in his limited exceptions con-
tends that the Respondent's no-solicitation rule is pre-
sumptively invalid and per se unlawful. We find merit
in this contention , and we find, contrary to the Trial
Examiner, that the Respondent's no-solicitation rule vio-
lates Section 8(a)(1) of the Act.
In December 1968, the Union began organizing the
Respondent's employees, and on January 21, 1969, the
Union sent a letter to the Respondent demanding recogni-
tion. On January 22, 1969, the Respondent answered
the Union's demand, stating that it doubted the Union
had a majority. On January 28, 1969, the Respondent
distributed to its employees a letter containing the no-
solicitation rule under present consideration. The rule
provides as follows: ;
Union activity by employees will be permitted only
during non-work time in non-work areas. Any solici-
tation or union activity during work time in work
areas will not be condoned and will subject offen-
ders to possible disciplinary action.
As the first sentence of this rule encompasses within
it a prohibition of oral solicitation during nonwork time
in work areas, it is unlawful absent unusual circum-
' In the absence of exceptions thereto, the Board adopts , pro forma,
the Trial Examiner ' s finding that the Respondent ' s discharge of May
was not for discriminatory reasons
stances,2 which we find do not exist in this case.3
Although the second sentence is not unlawful, it does
not by its terms negate the-effect, of the first sentence,
but at most renders the rule in its entirety ambiguous.
As the Board has held, with judicial approval, "the
risk of ambiguity must be held against the promulgator
of the rule rather than against the employees who are
supposed to abide by it."4
THE REMEDY
Having found that Respondent has engaged in certain
conduct prohibited by Section 8(a)(1) of the, Act, we
shall order the Respondent to cease and desist therefrom
and take specific affirmative action, as set forth below,
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By promulgating and maintaining a no-solicitation
rule which prohibits employees from soliciting orally
for the Union in, work areas during nonwork time,
the Respondent has violated Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board hereby orders that the Respondent , Motorist
Insurance Agency, Inc., Columbus, Ohio, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Promulgating or maintaining a no-solicitation rule
which prohibits employees from soliciting orally for
the Union in work areas during their nonwork time.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of the rights guaranteed to them by Section 7 of the
Act. -
2. Take the following affirmative action in order to
effectuate the policies of the Act:
(a) Post at its offices in Columbus , Ohio, copies of
the attached notice marked "Appendix ."5 Copies of
2 Whittaker Corporation, Advanced Metals Technology Division, 179
NLRB No 138; Stoddard-Quirk Manufacturing Company, 138 NLRB
615
3 The record fails to support the Respondent ' s contention that special
circumstances exist in the insurance business, in which it is engaged,
which justify the privileged type of no-solicitation rule applicable to
retail stores Cf May Department Stores Company d/b/a The May
Company, 136 NLRB 797, fn 4.
4 N L R B v Miller, 341 F 2d 870, 874 (C A 2), enfg Miller Charles
Company, 148 NLRB 1579 See also Marlene Industries Corp , 166
NLRB 703, 704, enfd. as modified 406 F 2d 886 (C A 6)
In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
(Cont.)
182 NLRB No. 142
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by the Respondent's
representative, shall be-posted 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 post-
ed. The Respondent shall take reasonable steps to insure
that such 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.
IT IS, FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it' alleges violations
of the Act not,specifically found herein.
Court of Appeals Enforcing an Order of the National Labor Relations
Board
MEMBER FANNING, dissenting: I .
I agree with the Trial Examiner that the no-solicitation
rule, read as a whole, merely prohibited union activity
during worktime in work areas. The rule was therefore
presumptively valid absent evidence not present here
that it was adopted for a discriminatory purpose. More-
over, the record establishes that the rule did not have
the effect of prohibiting the employees. from distributing
literature and soliciting orally during nonwork time in
work areas and during lunch periods in areas where;
employees congregate. The rule was therefore not viola-
tive of Section 8(a)(1) of the Act, and I would adopt
the Trial Examiner's Decision dismissing the complaint
in its entirety.
APPENDIX
.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL•LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate or -maintain a rule
which prohibits employees from soliciting orally
for the Union in work areas during their nonwork
time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed to them
by Section 7 of the Act.
MOTORIST INSURANCE
AGENCY, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
2407 Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL" W. SAUNDERS, Trial Examiner: Upon a charge
filed on May 26, 1969,' by Office and Professional
Employees International Union, Local #333, AFL-CIO,
hereinafter called the Union, the General Counsel issued
a complaint on July 28 against Motorist Insurance Agen-
cy, Inc., Motorist Mutual Insurance Company, and
Motorist Life Insurance Company, herein the Company
or Respondent, alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
At the trial all parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and
to submit briefs. Oral argument was waived. The General
Counsel and Respondent submitted briefs, which have
been duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make
the following:2
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Motorist Agency, Motorist
Life, and Motorist Mutual are, and have been, affiliated
businesses with common officers, ownership, directors,
and operators sharing common principal offices in Colum-
bus, Ohio, and constitute a single integrated business
enterprise in which the directors and operators formulate
and administer a common labor policy for the afore-
named corporations, affecting the employees of said
corporations. It is admitted and I find that Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
' All dates are 1969 unless specifically stated otherwise
2 All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of
the evidence as a whole
MOTORIST INSURANCE AGENCY„IN,C. , 991
III. THE UNFAIR LABOR PRACTICES
The main issues in this case are whether or not
the Respondent had an unlawful no-solicitation rule,
and whether the Respondent discriminatorily discharged
Chris May on May 16.
This record reveals, that the alleged discriminatee start-
ed his job as a fire underwriter in late September 1967.
May's starting salary was, $450 per month, and during
the course 'of his employment 'received three $25 a
month raises at the end of 3, 6, and 12 months' employ-
ment, respectively.
In the middle of December 1968, May met with Cather-
ine Lewis, president of Local #333, and Lewis instructed
May how to go about organizing Respondent's'employees
and also, gave him union authorization cards. From
thereafter May engaged in discussing the Union, and,
soliciting union membership with his fellow employees,
and authorization cards were returned to, May, who,
in turn gave them to Lewis.3
In .the Union' s organization campaign at least three
union meetings were held, at which time May addressed
those in attendance. May also assisted in composing
the Union's campaign literature distributed to Respond-
ent's employees, personally signed some of the litera-
ture,4 and engaged in handbilling same on at least one
occasion,. - - -
On or about January 21, the Company received 'the
Union's demand letter for recognition, and at this time
May informed Supervisors Terry. Ward, William Whit-
tington , and Bill Lawn that the employees were attempt-
ing to organize . May testified that Whittington and Lawn
immediately expressed their opposition to a union.5 On
January 24, Respondent's personnel manager, John
McConnell, addressed all the fire agency employees.
McConnell apparently read from a prepared text substan-
tially similar to General Counsel's Exhibit 9. Following
these remarks by McConnell, May told Supervisor- John
Ogg, assistant manager of the fire division, that some
facts had been misrepresented by. McConnell and the.
Union should be given the opportunity to answer, back.
A few days later May, and Ogg .continued this general
discussion and Ogg asked May if he was spearheading
the Union, to which' May replied that he, -was.. May
then proceeded. to tell Ogg what was, wrong with the,
Company. Ogg replied that May was entitled, to his
opinion, but Ogg was also entitled to his own- opinion.
May testified that subsequent to the above conversation
with Ogg, William Whittington, May's immediate super-
visor, and Marjorie Anderson, an administrative assist-
ant, would constantly follow him around the floor or
building, and this practice continued until his discharge,
but relented somewhat after the Union. withdrew, its,
representation petition in April, as afore stated.19„
On January 28, Respondent distributed to its employ-
ees General Counsel's Exhibit 11. This exhibit contains
the no-solicitation rule under consideration in this case
and•provides as follows:
Union activity by- employees will be permitted only
during non-work time in non-work areas. Any solici-
tation or union activity during work time in work
areas will not be condoned and will subject offen-
ders to possible disciplinary action.
This rule was intended - to supplement the general
no-solicitation rule contained in the Respondent's hand-
book, of rules for its employees-General -Counsel's
Exhibit 10, which prohibits all solicitations, other than
for the United Appeal and the flower fund.
May, testified that in the weeks subsequent to January
28, he had frequent conversations with Supervisors
Ward, Lawn, and Whittington concerning the Union,
and stated Whittington would always initiate the talks
he had with him. May stated that in the latter part
of February, at the close of a regularly scheduled under-
writers. meeting , Supervisor Ogg told May he was away
from his desk 30 percent more than the other underwri-
ters; and that . he, was going into departments other
than the fire division 'and disturbing the work of employ-
ees. May. then questioned Ward and Whittington about
this reprimand, and they supposedly told May that his
work was satisfactory and not.to worry about it.
In, March, Ogg informed, May that the work. he had
been doing recently-was not satisfactory and when May
inquired as to the specific work` in question Ogg replied,
"You know damn well what I am talking' about, 'let's
shape up and change." `t . - -
Upon returning from vacation the first week'in April,
May was given an extra work, detail of picking up
mail each morning in a nearby building. To do this
he had to report 15 minutes earlier but was let off
15 minutes earlier in the afternoon. Prior to this assign-
ment a female employee had been getting the mail,
but was afraid for her own personal safety. May testified
that starting -in July and. August 1968, he began to
write multiperil policies-the most complex fire poli-
cies-and stated he continued to do so until his discharge.
He stated that on May 16, Ogg merely informed him
that he was,' not suited for insurance work and his
services were no longer needed.7
The General Counsel introduced testimony through
a former policy typist, Brenda Johnson, to-the effect
that May produced as much, work as the underwriter
sharing his office and did twice the amount- of • work
of two other underwriters. She also stated that May
did just as many multiperil• policies as the other underwri-
9 The Union filed 'a petition for an election on January 21 'and a
hearing in Case 9-RC-8014 was held on February 13 and 14 at which
May testified for the Union On about March 29, the Board's Regional
Director issued a Decision and Direction of Election, but on April
3 the Union asked to withdraw its petition, and an order permitting
the withdrawal was issued by the Regional Director on April 9
4 G C Exhs 5 and 6`
5 On January 22, the Company replied to the Union's' demand letter
See G C. Exh 8
° There is no allegation of unlawful surveillance in this proceeding,
but there is credited testimony that part of Malone Anderson's job
was to keep track of employees and to know when they reported
to work and how long they took for breaks and for lunch
' G C Exhs 12, 13, and 14 are memos or letters by the Company
relating to the Union and passed out to employees On May 19, Ogg
prepared a personnel evaluation setting out the alleged reasons for
May's discharge, and introduced in evidence as G C Exh 16.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tern. Typist Morene Ruck also testified that May did
more work than the others in his field and twice as
much work as two other underwriters."
The General Counsel contended that Bob Earl and
Gary Kinsey were supervisors under the Act. There
is absolutely no evidence bearing on any of the powers,
functions, and duties performed by Kinsey. In efforts
to prove that Earl was a supervisor the General Counsel
introduced testimony through May, Carolyn Belts, and
Patricia Gray. However, the total aspects of their testi-
mony merely reveals that while Earl has five girls working
or typing for him, and is called revision supervisor,
his main duty is making certain endorsements and correc-
tions on policies and cancellations. Carolyn Belts admit-
ted that Earl has no power to hire or fire, and on
cross-examination she was not even certain that Earl
participated in the personnel ratings of the five girls.
From this record I must conclude that Earl merely
exercises functions of a routine or clerical nature and
which do not require the use of independent judgment.
In accordance with the above, I do not hold the Respond-
ent responsible for any acts or statements of Kinsey
and Earl.
John McConnell, personnel manager of Respondent,
testified that in January he was contacted by Ogg and
Whittington about May's job performance. McConnell
stated these supervisors informed him they had been
working with May for about 3 months, but now recom-
mended his discharge. McConnell disagreed with the
recommendation because the Union's organizational
attempts were in process, and on advice of counsel,
May was not terminated at this time. In March, his
situation was again discussed, and McConnell stated
that upon advice of counsel May was not terminated
at this time. In the month of May, the recommendation
for his termination was renewed, and McConnell related
that because of the disruption of work in the depart-
ments, his attitude, the morale factor, and the fact
that an underwriter's position was of a very sensitive
nature, it was then decided, in spite of the bad timing,
to discharge May." McConnell went on and testified
that during the past 2 years, 23 employees had been
terminated by the Respondent and 15 of the 23, including
May, had been terminated for unsatisfactory job per-
formance.
John Ogg was the supervisor who made the final
decision to terminate May. Ogg testified that May was
discharged for the following reasons:
(1) Inefficient use of work time.
(2) Showed no regard for supervision and authority.
" On cross-examination Johnson admitted she did not keep a record
of the policies she typed for each underwriter, and was in no position
to actually know whether May did twice as much work in the overall
job of an underwriter. On cross-examination Ruck admitted she kept
no record of the policies she typed for each underwriter, and further
admitted there were four other policy typists who could have picked
up policies written by other underwriters.
" In testifying as to May's attitude, McConnell stated that after
May returned from his vacation in early April, he was advised by
Ogg that May was attempting to disrupt the department
(3) Failed to show proper initiative in learning his
job.
(4) Broke company rules.
(5) Broke underwriter's rules.
(6) Has a very poor company attitude.
In elaboration of the above Ogg stated that 6 months
prior to the discharge it was reported to him that May
was constantly away from his desk and talking to other
employees; that when he was warned by Ogg and Whit-
tington about this he would comply for a day or so,
but would then revert to his old habit; that he considered
May a very satisfactory employee during his first year
of employment (up to October or November 1968),
but after this period of time a lack of initiative began
to appear; that May was, often tardy and violated the
no-smoling rule-Ogg stated that in his 23 years with
the Respondent, May was the only person he had ever
seen violate the rule on smoking;1° that May continually
complained about working conditions-air conditioning
in the summer, heat in the winter, inadequate pencils,
and not having a calculator; and that he would try
to belittle the work rules.
Ogg testified that over a period of 6 months prior
to the discharge, he frequently discussed May's faults
with him. He also testified that on April 9 May was
warned that if he did not improve he would be subject
to discharge. This warning was given by Ogg at a person-
nel review aduit when May's work was reviewed by
Ogg and Whittington and May was then given a 30-
day period to correct his deficiencies. Ogg stated that
in the rating or audit of May on April 9-out of the
10 items listed on his personnel rating form, he went
down in 7 of the catagories.I I
Whittington stated May's termination resulted from
his failure to follow underwriting procedures, his anta-
gonistic attitude towards management, and for not cor-
recting errors when brought to his attention. Whittington
also testified that May was a disruptive influence in
that he was always talking to the girls, had an "anti-
attitude" towards his work, was a constant complainer,
and voiced his complaints to others on worktime. Whit-
tington further related that in some instances May would
misinterpret guidelines on what risks the Company could
or could not accept, and stated he had discussed this
matter with him prior to any knowledge that May was
active for the Union. Whittington testified that in October
or November 1968, he first warned May that his work
was not satisfactory. He went on to state that up until
this time he was satisfied with May, but when given
work on less complicated mercantile risk policies, May
wanted his judgment or work to be checked, and manage-
ment felt after a year on the job he should be able
to handle these policies without the need for any checks
by others. Whittington further related that after May
had been with them a year, he also talked with him
about his attitude toward the Company and management.
"' At the time in question the Company had a rule which prohibited
any smoking while in the office building during regular working hours,
and this rule was strictly enforced at all times.
11 See G C Exh 15
MOTORIST INSURANCE AGENCY, INC. 993
Whittington corroborated the testimony by Ogg in respect
to May violating the no-smoking rule, and that he was
given a 30-day warning in April. Whittington stated
May seemed to "flaunt" the work rules and acted like
he wanted the Respondent to dismiss him. He also
testified that May's termination was not for just one
reason , but "it would be like putting grains of sand
in a - bucket, eventually the thing gets filled up and
it overflows and you have to do something about it."
Whittington further testified: "May was disrespectful
to some extent and that he seemed to make a sort
of cat and mouse game with the Company's operation.
He resented authority and although May did seem to
be developing after being hired, he levelled off after
about 9 months to a year from his hiring date."
Administrative Assistant Marjorie Anderson, testified
that right after May returned from his vacation in early
April, she observed May violating work rules, and
believed he deliberately flaunted and violated the rules.
Anderson then agreed that in all her 29 years of experi-
ence with the Company, she had never seen any other
employees "flaunt" work rules to the extent that May
did so.
The Respondent offered testimony through senior
underwriter Clifford Greene, who shared the same office
with May, to the effect that May did not like manage-
ment, and that May felt he could do "most anything"
in his job, and be protected by the Union.
It is the position of the General Counsel that the
discharge in question was the direct result of May's
attempts to organize Respondent's employees, and that
the reasons advanced by the Company in support of
the discharge are pretextual in nature. The General
Counsel argues that the testimony given by McConnell
was vague and inconsistent, that Ogg's testimony is
"spiked with incredible assertions," and that in certain
respects the testimony given by Whittington does not
even corroborate the statements given by McConnell
and Ogg.
May was employed by Respondent as a fire underwri-
ter, and this position is one which requires training
and bears considerable responsibility insofar as, the
Respondent is concerned. Certainly, an employee placed
in such a position requires the faith and trust of the
Company. This record shows that May could, without
supervisory approval, place Respondent on liability risks
of up to $50,000.
While employees in other divisions of the Company
assisted in organizational efforts, there is no question
that May was the chief organizer for the Union. As
pointed out, it was May who initiated the Union's cam-
paign composed, signed, and distributed a good deal
the Union's campaign literature, solicited authorization
cards, addressed union meetings , and acted as the
Union's spokesman both with the management and the
employees. On about January 21, May had discussions
about the Union with Supervisors Wade, Whittington,
and Lawn, so Respondent had definite knowledge of
May's activities for the Union.
However, against the array of 'substantial credible
testimonial evidence supporting Respondent ' s contention
that May was dismissed for cause , as indicated above,
there is insufficient evidence to support the theory of
General Counsel-who of course carries the burden
of proof here-that May was dismissed because of his
union membership , sympathy , or activities , or to discour-
age union membership . It is of. course obvious that
mere union membership and activities do not insulate
an employee from discharge for other reasons.
Union membership and activities is not a shield
behind which a discharged employee can take refuge
and claim discrimination . . . The burden remains
upon the General Counsel to prove that the reason
for the discharge was the employer ' s anti-union
hostility. An employer is not obliged to treat a
union member differently or with greater deference
than any of his other employees . Poor performance,
misconduct and insubordination , for example, do
not have to be tolerated merely because the offen-
ders are among the plant ' s most active union sup-
porters. An employer's stated opposition to unioni-
zation is not in itself sufficient evidence to sustain
a finding that an employee with discharged because
of discrimination against a union . [N.L.R.B. v.
Bangor Plastics , Inc., 392 F .2d 772, 777 (C A.
6).]
The testimony of Clifford Green , Marjorie Anderson,
and other witnesses for the Company show that May
felt increasingly insulated and secure from discipline
because of his activities for the Union, and on various
occasions as the campaign went on, openly defied the
Company to discharge him.
May stated that he never violated the no-smoking
rule nor did supervisors ever talk to him about his
work prior to his discharge , but then by his own testimo-
ny he made the following admissions . He discussed
the Union with other employees during working time;
he talked to supervisors about the Union during their
working time ; prior to filing the representation petition,
he solicited employee authorization` cards during working
time; he informed Supervisor Ogg that he liked the
insurance business but did not like to work for the
Company ; it was his personal opinion that the president
of the Company was not doing a competent job; admitted
that frequently Whittington had talked to him about
violating the no-smoking rule; and he thought some
of the Company work rules were old fashioned; that
Whittington had mentioned to him the fact that he
was talking too much to other employees; and also
admitted he was late to work on several occasions.
May further stated he had his office telephone number
put on union literature , and then admitted he did not
have authority from the Company to do so, and when
asked if it was his intent to have employees call him
on his office telephone he replied, "Yes sir , they could
call me at lunchtime or any time they wanted to, right."
He himself testified that in later February, Ogg told
him he was away from his desk 30 percent more than
other underwriters , and further admitted that in March,
Ogg had told him his work was not satisfactory.
Several of the above admissions and other evidence
in this record show that May held an adverse attitude
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward management, and it's understandable why this
factor also played some part of his termination His
frequent complaints12 and open resentment or disdain
for management, particularly a person working as an
underwriter, and in view of his own admission he did
not like working for Respondent, might well constitute
a lawful reason for discharge in itself May was also
the author of General Counsel's Exhibit 6, and under-
scored in his letter was the statement, "most of our
clerks and secretaries get less than people on welfare "
I agree that this statement was calculated to expose
Respondent to public contempt, and most definitely illu-
minates May's completely negative and hostile attitude
towards the Company
Both Whittington and Ogg testified that after about
a year of employment May's lack of initiative became
noticeable Since he was employed by the Company
in late September 1967, this would place the above
date in or about October 1968, and Whittington gave
credited testimony that in October or November 1968,
prior to any union activity, he warned May that his
work was not satisfactory, as aforestated 43 Whittington
also stated he had received complaints from field agents
to the effect that May was issuing incorrect policies
Based on such factors Whittington felt that the Company
could not trust May to handle some of the complicated
policies and he made this judgment within 12 to 13
months after May had been hired and which would
lie before any union attempts to organize were made
The evidence shows that Whittington had first recom-
mended May's discharge in early January, and his reason
for so recommending were the errors they found in
his work based on complaints from agents that May
was writing broad form coverage on older properties,
his poor attitude, and the antagonism he was displaying
against rules 14 In March, May's name came up again
and Ogg then determined that he was not entitled to
a pay raise, and at the same time recommended his
discharge, but higher officials in management rejected
the recommendation due to the existing situation with
the Union
On April 9, May was called into the office by his
supervisors and given a personnel evaluation or audit
As previously indicated, May had retrogressed in 7
out of the 10 rating factors and was given 30 days
to improve 11
" The Company went so far as to get May a calculator and a
fan
i' May testified that when Whittington told stories about happenings
in the past he discounted about half of what he said but stated that
Whittington was a good supervisor and that he was basically honest
i" Whittington places their initial recommendation for discharge at
a time in early January and before the Company knew of the union
activity Personnel Manager McConnell also places Whittington s and
Ogg s recommendation in January and stated that at the time he was
aware of the Union s campaign but that he was not aware of May s
activities for the Union until some time later when he saw one of
his letters advocating the Union
" May denied he ever met with Ogg and Whittington on April 9
As previously indicated, the specific reasons given
by Ogg and Whittington for the discharge on May 16
are substantially supported by reliable evidence Further-
more, it seems to me that management officials went
to considerable lengths to make certain that May was
not discharged for any union activity They turned down
the first and second recommendations that he be termi-
nated, and these two recommendations were made during
a curtail period in the Union's efforts to organize On
April 3, as pointed out, the Union asked to withdraw
its representation petition In the final analysis, May
admittedly was not discharged until some 4 months
following the peak of his union activity
The overall and concluding aspects in this record
adequately reveal that the termination of May was not
discriminatorily motivated The Company could require
that May abide by its work rules and meet its demands
for increased work responsibilities, and could also expect
an employee to fully carry out all reasonable directions
of its supervisors The Board and courts have frequently
held that an employee has no right to insist upon employ-
ment on terms prescribed by him As the organizational
campaign went on, May attempted to set up his own
separate working rules to govern his own conduct, and
then had expectations his union activity would prevent
any recourse against him However, I have found the
Company refused to accept May's continued insubordi-
nations and nonacceptance of working relationships and
therefore discharged him for cause and not for discrimi-
natory reasons
To constitute a violation of Section 8(a)(3), "an
improper motive must be a cause without which the
employees would not have been discharged " N L R B
v Neuhoff Bros Packers, Inc , 398 F 2d 640 (C A
5) As to whether or not an unlawful motive can be
inferred, this court has stated
With discharge of employees a normal, lawful
legitimate exercise of the prerogative of free man-
agement in a free society, the fact of discharge
creates no presumption, nor does it furnish the
inference that an illegal-not a proper-motive was
its cause An unlawful purpose is not lightly to
be inferred In the choice between lawful and unlaw-
ful motives, the record taken as a whole must
present a substantial basis of believable evidence
pointing toward the unlawful one
Based on an evaluation of all the circumstances sur-
rounding this discharge the record herein supports
Respondent's contentions that Chris May refused to
adhere to company rules, and failed to show work
progress and initiative, while displaying a constant, grow
ing, and continual contempt for the Company
The General Counsel contends that the no-solicitation
rule, especially the first sentence of the rule, is per
se violative of the Act as the rule appears to prohibit
employees, during nonworking time, from engaging in
but both supervisors testified that such an evaluation was made on tent answers and obviously reached complete entanglement when he
the date in question and that May was present I have also credited stated that Ogg and Whittington never mentioned his work prior to
the Respondent s witnesses because of their demeanor and straightfor termination but then admitted that they had done so in February and
wardness while testifying As related herein May gave several inconsis March when his work habits were openly criticized by supervisors
MOTORIST INSURANCE AGENCY, INC. 995,
the" solicitation of employees for the Union in working
areas. The General Counsel also maintains it is inferable
from the record that the entire area of the fire agency
would be considered by Respondent and employees
alike to be a working area.
The limitations generally applicable to the promulga-
tion or maintenance by employers of non-solicitation
rules, which were stated by the Board in Peyton Packing
Company, 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 cover-
ing the conduct of employees on company time.
Working 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, wheth-
er 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 promul-
gate 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-organiza-
tion and therefore discriminatory in the absence
of evidence that special circumstances make the
rule necessary in order to maintain production or
discipline.
In N.L.R.B. v. F. W. Woolworth Co., 214 F.2d
78, 85 (C.A. 6), the court stated:
Neither the Constitution, the common law, nor
the Labor Management Relations Act confers upon
employees the right to use for union purposes the
property- of their employer during working hours,
over the objections of the employer.
While 'there might be some slight misunderstanding
in the initial sentence of the Respondent's no-solicitation
rule, as aforestated, its meaning is immediately thereafter
clarified by the second sentence which provides that
the restrictions imposed are merely limited to worktime
in work areas.
It is clear therefore that the challenged rule is a
valid one unless there is evidence in the record to
overcome the presumption of validity. The Board relies
on the rule 'stated by it Peyton and by the Supreme
Court in Republic Aviation that a rule prohibiting union
solicitation, even during working hours, will not be
upheld if it is "adopted for a discriminatory purpose."
Up until the period in question the Respondent had
operated its offices with a published rule which prohibited
all solicitations other than United Appeals and for the
flower fund. It appears that the policy of the Company
was to formulate rules and-publish some when its opinion
there was need for such a rule or rules. In attempts
to show that the solicitation rule here in question was
adopted for a discriminatory purpose-May testified the
Company permitted solicitations for football pools during
working time and stated that most everyone participated
in it. A football pool cannot be classified as a solicitation
endeavor of any kind, and must be deemed as unauthor-
ized activities of individuals for rewards and completely
outside the scope of the problem and considerations
here. Furthermore, based on demeanor of the witnesses
and for other reasons stated herein, I do not credit
the testimony * of May that supervisors started them
and thereby participated in the football pools.
In regards to the specific application of the no-solicita-
,tion rule in question Personnel Manager McConnell stat-
ed as follows:,
We felt that working time should be for work.
We'did not prohibit any solicitation or any activity
during non-work time and in non-work areas. We
did not try to attempt to stop anyone from soliciting
the in-work areas during work time . In fact, when
somebody complained about the rule, we felt it
was, a prohibitive rule or a right rule. The only
real problem insofar as solicitation was concerned,
we felt. that solicitation during work hours, during
work time, in work areas should be prohibited.
On the subject of enforcement of the challenged
rule, there' is no evidence that any disciplinary action
was taken against employees. Moreover, no claim was
made by anyone that the Company was interfering with
the Union 's organizing efforts and no specific request
was made for any relaxation of the rule. In fact, the
outward and continual union activity by May on working
time without any open objection by the Company is
another indication there was no enforcement of the
rule. This record also plainly reveals that there were
ample opportunities to distribute literature and solicit
orally during nonworktime in work areas and during
lunch periods in areas where employees congregated."
Furthermore, I fail to see how the timing of the rule
under the circumstances here prevailing has any signi-
ficant bearing. As the court pointed out in TRW, Inc.
v. N.L.R.B., 393 F.2d 771, 774 (C.A. 6), if the rule
was to be published at all, this was the logical time
to do it. The court stated:
The company could well have considered that publi-
cation of such a rule prior to the receipt of the
union's letter would be premature. It would have
been inconsistent with company policy not to pub-
lish rules unless they were needed. . . . The publi-
cation of the bulletin [the no-solicitation rule] was
triggered by the union's letter so the timing was
the result of action by the union rather than by
independent choice of the company.
"' The work space of the building were areas with desks of clerical
employees out in the open and such desks arranged in front of the
private offices Visitors to the offices must walk through the open
areas, and to permit union activity in these work areas during working
time would have certainly disrupted the Respondent's office procedures
Accordingly, the Company had, special circumstances which also sus-
tained its position '
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several of the circumstances and factors noted by the 2 The Union is a labor organization within the mean-
court in the above case are present or readily inferable ing of Section 2(5) of the Act
to the instant proceeding, as aforementioned It is also
noted that in the January 28 publication of the rule 3 The Respondent has not engaged in unfair labor
by the Respondent, the employees, in the same notice practices alleged in the complaint
were further advised (1) That all supervisors had been
told not to interfere, restrain, or coerce them because
of their union activities, and (2) that the Company
repudiated any act of supervisors that had "actually"
or "presumably affected" their rights to engage in union RECOMMENDED ORDER
activities
In summary, I find that the Company had a legal
right to formulate and enforce the rule in question,
and there is insufficient evidence to show that it was It is hereby recommended that the complaint be dis-
formulated for a discriminatory purpose 17 missed in its entirety
CONCLUSIONS OF LAW
I The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
" The General Counsel cites Kern s Bakery Inc 154 NLRB 1582
In this case the employees were first required to get permission to
solicit for union membership and the rules also prohibited solicitations
during nonworking time in working areas