Outboard Marine Corp.

National Labor Relations Board - Board Decisions

Jun 19, 1963

142 N.L.R.B. 1246 (N.L.R.B. 1963)

1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Shotzberger's and Faul's reactions
Quite apart from the reasons for their discharge given by Ford , which , incidentally,
I believe , Shotzberger and Faul credibly testifying to the incidents set forth above,
expressed their own personal reasons , first for seeking to obtain a work permit, and
thereafter for being unwilling to work without one . Thus Shotzberger testified that as
soon as they arrived on the job they told Superintendent Ford that they were going
to the union office for a work permit before going to work . Then , when they
learned that they could not get a permit "Gregory Faul and myself then decided we
weren 't going to go to work without a permit ." Because, as he later testified, he
feared "what might develop (referring to the possibility of union carpenters not
working on the job with them ) if I went to work without a permit and also because
of the union By-Laws."
Similarly , Faul testified that he knew that as a union member he was required to
have a permit before going to work and that he voluntarily left because he could
not get such a permit.
Faul's testimony suggests , to be sure , an inherent conflict , for throughout it there
is the constant reference to Superintendent Ford 's insistence that he have a permit
before going to work . In my opinion Faul could well believe both alternatives,
knowing as he did that Ford was as interested in the matter as he was. Thus Ford's
strong feelings in favor of accommodating the Respondent became , in Faul 's mind,
the same as his own feelings of loyalty and compulsion as a union member.
B. Conclusions
Upon the foregoing facts it is plain that Shotzberger and Faul were refused employ-
ment at the Wilmington job for either or all of three reasons: ( 1) Food Fair's
refusal , through its union -oriented field superintendent , Ford , to permit them to work
on the job ; (2) their respective loyalties to the union code of operations requiring
that out-of-town union members in good standing be cleared onto a job by either
clearance or the issuance of a work permit ; and (3 ) their fears of what would happen
either to them or to the job should they go to work without either clearance or a
work permit.
If the reason for their nonemployment be Food Fair 's reluctance , through Field
Superintendent Ford , to continue their employment it would appear that the wrong
party has been named Respondent in this proceeding . If, on the other hand, the
reason be either of the two remaining alternatives it would then appear that Shotz-
berger and Faul were exercising either their prerogatives or their apprehensions, as
the case may be, of the staunch union members they claimed to be In no event,
however , is there anything in the record of this case to suggest that the Respondent
Union in any way caused or attempted to cause Food Fair , through its field super-
intendent , Ford , or otherwise , to dismiss Shotzberger or Faul . Nor, in the alter-
native , is there anything to suggest that Respondent coerced or restrained either of
these two into withdrawing from their jobs. In the absence of such evidence and
the positive evidence of voluntary action on the part of each employee affected I
would recommend that the complaint be dismissed in its entirety.
Gale Products, Div. of Outboard Marine Corp.' and Marine Motor
Lodge No. 16591 and Bernard Smith . Cases Nos. 13-CA-4875
and 13-CA-4910. June 19, 1963
DECISION AND ORDER
On October 30, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
'Hereinafter referred to as Gale or the Respondent
2 Hereinafter referred to as the Independent
142 NLRB No. 136.
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1247
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Intermedi-
ate Report and briefs in support thereof.
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.3 The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
1. The Trial Examiner found that the Respondent did not violate
Section 8(a) (1), (3), and (4) of the Act by terminating employee
Bernard Smith on May 25, 1962, and by discharging him on June 11,
1962. For the reasons fully set forth in the Intermediate Report, we
agree with the Trial Examiner's conclusions regarding those alleged
violations 4
2. In March 1962, some 2 months after the latest collective-bargain-
ing contract between Gale and IAM became effective, Bernard Smith,
the Charging Party in Case No. 13-CA-4912, was removed as presi-
dent of IAM, together with other officers of the local, for undisclosed
reasons. Although they retained their membership in IAM, Smith
and a number of other employees formed the Independent and then un-
successfully sought recognition from Respondent.
As more fully set forth in the Intermediate Report, the 1962 con-
tract contained, as did previous agreements, a broad provision prohibit-
ing distribution of any literature or solicitation of membership in any
organization anywhere on the Respondent's premises at any time.
Nevertheless, during early May 1962, a number of the employees who
had formed the Independent attempted to distribute membership ap-
plication cards for the Independent on the Respondent's premises.
Upon learning of this activity, the Respondent interrogated employees
concerning the matter, seized many such cards (both signed and un-
signed) from various employees, held the cards in the personnel office,
and issued "final notices" to several employees "for soliciting and dis-
tributing literature on Company property" in breach of company rules.
There is no contention that the solicitation and distribution of cards
occurred in work areas or on worktime; the Company contends, rather,
that the distribution was unprotected, because it occurred on company
property in violation of the contract provision.
3 Marine Motor Lodge No. 1659, International Association of Machinists , AFL-CIO,
hereinafter referred to as IAM, was allowed to intervene on the basis of its current
collective-bargaining contract
4 See Standard Packaging Corporation , Royal Lace Paper Division, 140 NLRB 628.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that IAM, by agreeing to this contract-
ual provision, effectively bargained away the right of employees in the
unit to engage in any solicitation, whether for IAM or a rival union,
even during nonworking time away from work stations. He concluded
that he was required by the Board's dictum in May Department
Stores 5 to find both the clause and its "proper" enforcement to be
valid.6 In that case, the Board considered the effect of contractual
waivers upon solicitation engaged in by employees on behalf of the
contracting unions. Here, however, the solicitation and distribution
,of cards by employees which led to the disciplinary action by the Re-
spondent was not activity engaged in on behalf of the incumbent union,
but was an expression of dissatisfaction with that labor organization.
This, in our opinion, presents an altogether different problem. It is,
of course, clear that whether the "distribution" of union application
cards be deemed to be solicitation or the distribution of literature, a
rule promulgated by ui employer prohibiting such activity during
nonworking time in nonwork plant areas is presumptively invalid.'
And as the distribution of union authorization or membership cards
is distinguishable from handbilling and is a form of solicitation," a
rule against the distribution of such cards is also presumptively in-
valid if applicable to nonworktime in work areas of the plant.' The
record is devoid of any evidence that any special circumstances existed
hero which would rebut that presumption. Thus, it appears that but
for the existence of the collective-bargaining contract, both the rule
and its enforcement would constitute violations of the Act.
It is well recognized that a salutary purpose may be achieved by
refusing to disturb concessions yielded by either party through the
processes of collective bargaining even where such a concession may
B 59 NLRB 976, at footnote 17, pp. 981-982 , in which the Board , in discussing contracts
entered into by labor organizations not party to that proceeding , remarked as follows :
We . . . find . . . that the employees embraced by these contracts , on the assump-
tion that the latter were entered into by organizations which represented a majority
of the employees in an appropriate unit, have thereby effectively bargained away their
right to engage in union solicitation on the respondent 's premises . Consequently,
and so long as the contractual provisions in question remain in effect , the respond-
ent's prohibition against union solicitation on the respondent 's premises at all times
by employees covered by such contracts , is not to be 'deemed improper . Cf Matter of
North American Aviation , Inc, 56 NLRB 959. [Emphasis supplied ]
The Trial Examiner then concluded that although the clause was valid , Respondent's
methods of enforcing the clause "went far beyond 'proper ' and lawful conduct" and
violated the Act.
7 Remington Rand Corporation, 141 NLRB 1052 (IR) , Stoddard-Quirk Manufacturing
Co., 138 NLRB 615. Members Fanning and Brown , for the reasons set forth in their
partial dissent in Stoddard-Quirk, would adhere to the rule stated in Walton Manufactur-
sng Company, 126 NLRB 697 , and would not hold valid a rule against distribution of
literature during nonworktime in work areas . However , for purposes of this case, they
accede to the Stoddard - Quirk modification and limit their finding concerning the pro-
scription against distribution of literature as it relates to nonwork areas.
Je Stoddard -Quirk Manufacturing Co., supra.
Old. ; Remington Rand Corporation , supra (']R.).
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1249
infringe upon rights guaranteed employees under Section 7 of the
Act. Thus, for example, the validity of "no strike" clauses has long
been established. The validity of a contractual waiver of employee
rights must depend, however, upon whether the interference with the
,employees' statutory rights is so great as to override any legitimate
reasons for upholding the waiver. Upon consideration of all the rele-
vant factors, we are persuaded that, in the circumstances of this case,
an unlimited contractual prohibition against union solicitation and
distribution would unduly hamper the employees in exercising their
basic rights under the Act.
Their place of work is the one location where employees are brought
together on a daily basis. It is the one place where they clearly share
common interests and where they traditionally seek to persuade fellow
workers in matters affecting their union organizational life and other
matters related to their status as employees. This is undeniably so in
the case of employee dissatisfaction involving efforts to change their
bargaining representative. While other problems might well be aired
at union meetings, the desire to designate a different representative is
hardly an appropriate subject for discussion at a meeting held under
the auspices of the very union sought to be displaced. However, the
effect of the present contract clause goes far in perpetuating the in-
cumbent union by withholding from employees their customary op-
portunity for expression of opinions.'0
The Respondent's only legitimate basis for the prohibition in ques-
tion would be to eliminate interference with production. But the
instant clause exceeds the permissible limits for accommodating such
employer interest with the organizational rights of employees under
the Act.il Needless to say, neither an employer nor an incumbent
union is entitled, absent special circumstances which do not appear
here, to freeze out another union by trenching on statutory rights of
employees to engage in protected activities. Accordingly, the con-
tractual waiver is without warrant in the present circumstances.
We find, therefore, that the contract clause is invalid insofar as it
prohibits any distribution of literature during nonworktimes in non-
work areas and any solicitation of membership on nonworktime on
behalf of a labor organization other than the contracting union, be-
cause it interferes with the employees' right freely to select their rep-
"Contrary to the statement of our dissenting colleagues that under the contractual
waiver here involved " employees may still discuss union matters on their own time," the
fact is that the provision has been interpreted to deny this right on company property.
Further, the implication of the dissenting opinion that the employees are entirely acces-
sible to organizational attempts off company premises is without any evidentiary support.
U See TVah Chang Corporation , 124 NLRB 1170, reversed 305 F. 2d 15 (C.A. 9) (1962).
While the court reversed the Board and found no violation , this conclusion was based on
its reading of the contract clause as limiting the prohibition against solicitation and dis-
tribution to work areas and worktime and upon its finding that the activity in question
occurred under those conditions.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentatives as guaranteed by Section 7 of the Act. We further find
that the Respondent also violated Section 8(a) (1) of the Act by en-
forcing the said contract clause to prohibit the activity on behalf of
the Independent which occurred here only in nonwork areas of its
premises.
In view of the above, we agree with the Trial Examiner that the
methods used by Gale to enforce the contractual clause violated Sec-
tion 8(a) (1). Accordingly, we shall adopt the remedial portions of
the Intermediate Report except as modified herein."
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications :
1. Add the following paragraph (c) to section 1 of the Recom-
mended Order.
(c) Maintaining, giving effect to, or enforcing any rule or
collective-bargaining provision which prohibits employees from
soliciting union membership on nonworkingtime, or distributing
union literature in nonworking areas of company property, on
behalf of any labor organization other than the labor organiza-
tion which entered into such provision.
2. The paragraph of the Trial Examiner's Recommended Order
designated 1(c) shall be retitled 1(d) .
3. Paragraph 2(b) of the Trial Examiners Recommended Order
shall be amended to require, under the terms and conditions set forth
by the Trial Examiner, the posting of the attached notice marked
"Appendix" rather than for the posting of the Trial Examiner's
notice.
CHAIRMAN MCCULLOCH and MEMBER LEEDOM, concurring in part
and dissenting in part :
For a number of years, the collective-bargaining agreements, in-
cluding that presently in effect, between Respondent and the IAM,
representative of Respondent's production and maintenance employ-
ees, have included a prohibition against distribution or posting by
employees of pamphlets, advertising or political matter, notices, or
any other kind of literature upon company property, except on bul-
letin boards provided for that purpose. The present complaint
arises, insofar as relevant, from the efforts of Respondent to prohibit
the distribution of membership application cards by a group of IAM
dissidents upon company premises, although neither on worktime
nor in work areas.
12 Because we do not have the May Department Stores ( footnote 5, supra ) situation
here, our Order will be limited to the specific violations found.
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1251
The majority members agree that statutory rights may be waived
by collective bargaining.13 They seemingly agree that there was
such a waiver in this case, but they refuse to give effect to it because
to do so "would unduly hamper the employees in exercising their
basic rights under the Act." But a waiver by a collective-bargaining
representative always hampers employees in the exercise of statutory
rights. Presumably, the employees have received a quid pro quo
for the waiver. We cannot agree that giving up the right to dis-
tribute campaign literature on company premises involves a greater
sacrifice than, for example, surrendering the right to strike, which
the Board and the courts have recognized may lawfully be done.14
In fact, as early as 1944, the Board specifically said that employees
through their statutory representative may bargain away their right
to engage in union solicitation on the employer's premises.15
Giving effect to the waiver will hardly have so serious an impact
upon employees' rights as to justify ignoring the contractual com-
mitment. Although they may not under their agreement distribute
literature or solicit on company premises, employees may still discuss
union matters on their own time, distribute literature at plant gates,
and carry on organizing activities through other usual channels. This
is not a case where the inaccessibility of employees makes ineffective
reasonable attempts at organization off company premises.16 Thus,
the sum total of the waiver is that employees have agreed, insofar
as the distribution of union literature is concerned, that they shall be
treated as if they were nonemployees. The Supreme Court has said
"that an employer may validly post his property against nonemployee
distribution of union literature if reasonable efforts by the union
through other available channels of communication will enable it to
reach the employees with its message and if the employer's notice or
order does not discriminate against the union by allowing other dis-
tribution." 11 It is to be noted that the rule to which the employees
contractually agreed prohibits the distribution of all kinds of litera-
ture and not merely union literature, that is not intended for the
benefit of the incumbent union and does not give the incumbent veto
power over possible rival union activity,18 and that it has been en-
13 See, e g., Local 174, Teamsters, Chau f eurs, Warehousemen & Helpers of America v.
Lucas Flour Co, 369 U.S. 95 ; N.L.R.B. v. Sands Manufacturing Co., 306 U.S. 332 ; Inter-
national News Service Division of The Hearst Corporatson , 113 NLRB 1067, and cases
cited therein.
14 Local 174 , Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas
Flour Co., supra ; N L R B. v. Sands Manufacturing Co , supra; Scullin Steel company, 65
NLRB 1294, enfd. as mod . 161 F. 2d 143 (C.A. 8).
15 May Department Stores, 59 NLRB 976, 981-982.
' Cf N L R B. v Babcock & Wilcox Co , 351 'U IS 105, 112-113
17 Id. at 112
18 Cf. Wah Chang Corporation, 124 NLRB 1170 , set aside 305 F. 2d 15 (C A. 9).
712-548-64-vo1. 142-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forced not only against the dissidents, but against the incumbent
IAM as well.
In view of the foregoing, we would find, as did the Trial Examiner,
that employees through their bargaining representative have validly
waived their right to distribute union literature on company premises.
We would also find, as did the Trial Examiner, that in enforcing the
rule Respondent went far beyond proper and lawful conduct, thereby
violating Section 8 (a) (1) of the Act. However, contrary to the Trial
Examiner, we would find that the "final notices" distributed to em-
ployees warning that further infractions of the company rule against
distribution of literature on company property would be considered
cause for dismissal were a proper means for enforcing the rule which
we would find to be lawful.
APPENDIX
NOTICE TO ALL EMrIoYEEs
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 seize or demand surrender of application cards
or like material, pertaining to any labor organization, from any of
our employees.
WE WILL NOT demand that you reveal the source of any union
material in your possession.
WE WILL NOT maintain, give effect to, or enforce any rule or
collective-bargaining provision prohibiting employees from so-
liciting union membership on nonworking time, or distributing
union literature in nonworking areas of company property, on
behalf of any labor organization other than the labor organiza-
tion which entered into such provision.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as amended.
WE WILL remove from their personnel file and destroy all "final
notice" warnings issued to employees on or about May 9, 1962,
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1253
which were issued for soliciting membership on company
property.
GALE PRODUCTS , Div. OF OUTBOARD
MARINE CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive clays from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago, Illinois, 60603, Telephone No.
Central 6-9660, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On May 10, 1962, a charge in Case No. 13-CA-4875 was filed by Marine Motor
Lodge No. 1659. On May 25, 1962, a charge was filed by Bernard Smith, an in-
dividual, in Case No. 13-CA-4912. On June 28, 1962, the General Counsel of the
National Labor Relations Board issued an order consolidating the two cases, a con-
solidated complaint, and a notice of hearing thereon . Thereafter the above-named
Respondent filed its answer, dated July 6, 1962. The complaint alleges and the
answer denies that the Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1), (3 ), and (4) of the National Labor Rela-
tions Act, as amended. Pursuant to notice , a hearing was held in Galesburg, Illinois,
on August 29 and 30, 1962, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, ' to argue orally and to file briefs. Briefs
have been received from General Counsel, the Respondent, and the Intervenor.
Disposition of the Respondent's motion to dismiss the complaint, upon which rul-
ing was reserved at the hearing, is made by the following findings, conclusions, and
recommendations. The Trial Examiner hereby grants the Respondent's motion,
received on October 22, 1962, to correct the transcript in certain minor respects.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and it is here found that:
(1) Outboard Marine Corporation is a Delaware corporation.
(2) Outboard Marine Corporation maintains its Gale Products division in Gales-
burg, Illinois, the only facility involved in these proceedings. The said Respondent
corporation also maintains and operates plants and facilities in the States of Wiscon-
sin and Missouri.
I Prior to the hearing the Chief Trial Examiner granted a motion to intervene in these
proceedings submitted by Marine Motor Lodge No. 1659, International Association of
Machinists, AFL-CIO Said motion was granted "to the extent of the interest of the
Intervenor in the proceedings subject to such further ruling by the Trial Examiner pre-
siding at the hearing as he may deem it advisable in the light of the issues as developed."
At the opening of the hearing the representative of the IAM was permitted to make an
offer of proof concerning the Intervenor 's interest . Since it appeared from the offer of
proof that it was irrelevant to the issues raised in the pleadings , further participation
by the Intervenor in these proceedings was restricted to any material matters of interest
which might arise during the course of the hearing . No such matters in the opinion of
the Trial Examiner , were later developed.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) The Galesburg division is engaged in the manufacture and repair of outboard
motors and related products.
(4) During the year preceding issuance of the complaint the Respondent pur-
chased , transferred , and delivered to its Galesburg , Illinois, plant goods and mate-
rials valued at more than $50,000 directly from points outside the State of Illinois.
(5) During the same period the Respondent shipped products and materials val-
ued at more than $50,000 from its Galesburg plant directly to points outside the State
of Illinois.
(6) The Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING LABOR ORGANIZATION
Marine Motor Lodge No. 1659 is a labor organization within the meaning of
the Act 2
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
Acts of two types , engaged in by the Employer, initiated the issues in these con-
solidated cases: ( 1) the invocation of a plant rule prohibiting the distribution of
"any kind of literature upon Company property"; and (2 ) the termination of Ber-
nard Smith 's employment on May 25, 1962.
The complaint alleges that by threatening to discharge employees for violation
of an unlawful plant rule the Respondent interfered with, restrained , and coerced
them in the exercise of rights guaranteed by the Act. The answer denies the unlaw-
ful nature of such disciplinary measures , and urges that the Respondent was merely
enforcing a rule contained in an existing contract between it and Marine Motor Lodge
No. 1659, International Association of Machinists , AFL-CIO.
The complaint alleges that employee Smith was effectively discharged because he
(1) filed charges under the Act, and (2) assisted the Charging Union and engaged in
protected concerted activities . The answer denies these allegations , and claims that
Smith was fired for the reasons appearing on his separation notice:
Insubordination , being absent without permission , disrupting work by wearing
Indian headdress and sign , telling employee to transfer without authority, tak-
ing an employee to another dept. without permission , attempting to get letter
signed on Company property, soliciting and distributing literature on Company
property.
The context of the acts in issue may be briefly summarized. When his employ-
ment was terminated in May 1962 Smith had more than 20 years ' service with the
Respondent . He had been active in the IAM's Lodge 1659 . He was elected president
of the lodge in 1961 and held this office until March 1962 when he , together with
other officers and committee members of the local , were ousted from office but not
membership by the International . The Respondent was formally notified of the
removal action and of the appointment of other individuals to serve in a temporary
official capacity for the IAM lodge.
About 2 weeks after his removal from office Smith and a number of employees
voted to disaffiliate from the International . The next day Smith and others went
to the Respondent 's director of industrial relations , Richard Shover , informed him of
the "disaffiliation ," and requested his recognition of them as representatives of an
independent labor organization of the same name and lodge number but without
affiliation with any International . Shover declined recognition?
At the time of these events there existed between the Respondent and Lodge No.
1659, IAM, a 2-year contract , which had become effective in January 1962, and
which Smith himself had helped to negotiate . It contains a union -shop clause,
2 The Respondent denies that the Charging Party is a labor organization within the
meaning of the Act . The only proof it adduced to support its denial was the eliciting of
an admission by the president of the organization that certain information had not been
forwarded to the Secretary of Labor as required by Section 201(a ) of the Act. The Trial
Examiner is not aware that under any interpretation of law it may be held that a person
or an organization loses its identity by failing to abide by law. In the contrary, as noted
hereinafter , evidence produced by General Counsel shows that the Charging Party-in
Case No 13-CA-4875-has officers , bylaws, applications for membership , and has sought
to represent for purposes of collective bargaining employees of the Respondent. (See
N L R B v Cabot Carbon Company and Cabot Shops, Inc., 360 U S 203 )'
Whether or not such "disaffiliation" was lawful or effective is not in issue here. The
question of the continued effectiveness of the contract will be discussed hereinafter.
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1255
requiring employees to become and remain members "within 5 days after their 90-
day probationary period." General Counsel does not contend that the contract is
unlawful or that its provisions were not effective during the material period?
Smith and an undetermined number of his followers proceeded to set up a "rival"
labor organization, using the same lodge number and name, but without affiliation
with any Internationals They had membership application cards printed, elected
officers, and eventually adopted bylaws.
In this setting, and upon actual distribution of these application cards, arose the
issues previously described.
B. Invocation of the plant rule
1. The facts
According to the testimony of Industrial Relations Director Shover, upon his
arrival at his office the morning of May 2, 1962, he found on his desk a note from
Foreman Redmond stating that he had "heard a rumor that there were going to be
cards distributed in the factory." Shover called in Superintendent Behrens, told
him of the rumor, and said that "we could not permit this sort of thing" in view of
"contract rules that were agreed to by the Union and is in the agreement." Behrens
agreed to "contact" the various foremen in the shop.
Not long after this management conference, apparently, Bernard Smith asked
his foreman, Harlan Stine, if he had been given any instructions to watch him, to
see if he was passing out cards. Stine replied that he had. Smith then asked if
there was anything "wrong with passing out cards on the break period and at noon
hour." Stine replied that he did not care what he did on his own times
That noon, during his lunch hour, Smith obtained from the printer a quantity
of application cards for membership in the independent organization he then headed,
gave some to various employees, and placed others in his toolbox and on his person.
Later in the afternoon Stine came to Smith and said he understood he had "some
cards." Smith admitted the fact. Stine said, "Let me have them." Smith gave him
the cards he had in his pocket, whereupon Stine took him to Shover.
At Shover's office Stine gave the cards to the director, who put them in his desk.
Shover told Smith he was "violating the agreement for passing out these cards on
company property." Smith protested that there was other solicitation "going on" on
company property, but Shover warned him against doing it again.
The next day, however, Smith passed out more cards in the company parking lot
before going in to work. Later that morning Stine came to him again and asked if
he had any more "membership cards." When Smith admitted that he had, Stine
demanded that he give them to him. Smith refused, insisting that such cards were
his personal property. He was again taken to Shover. Shover demanded that he
surrender the cards Smith refused to give up his personal property. Shover de-
clared that he was refusing to obey a direct order. Smith admitted that this was
so, if he was insisting that he yield his personal property. Shover then asked him
if he would stop passing out cards on company property and the employee agreed.
On May 9 Smith was given his "final notice" by Shover, a document in evidence
which states in part:
You are hereby informed that you have failed to meet our requirements as
follows:
For soliciting and distributing literature on Company property; in direct
violation of Article XIII, Section 2 and rule 5 of Discipline under Factory
Rules and Regulations.
Final Notice, further infractions of company rules will be considered a cause
for dismissal.
' On the contrary, the Regional Office declined to issue a complaint following a charge
filed by Smith's group alleging, among other things, that the Respondent had unlawfully
assisted the IAM by recognizing it as the exclusive representative of employees in an
appropriate unit.
5In its motion to intervene the JAM states that it "has been granted a restraining
order against the charging parties wherein they are enjoined from further use of its name
in any manner whatsoever." It appears that the charge in Case No. 13-CA-4875 was
filed before any such restraining order was issued. In any event, the point is immaterial
to the issues here raised.
6 Smith's testimony about this incident is undisputed.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2 of the contract article thus invoked follows certain provisions concern-
ing the use of company-provided bulletin boards in the plant. The section reads:
There shall be no other general distribution or posting by employees of
pamphlets, advertising or political matter, notices, or any kind of literature
upon Company property, other than as herein provided.
Rule 5 reads:
No employee is authorized or will be permitted to solicit membership for
Insurance Companies, Fraternal, Social or other organizations, or to carry on
within the Plant any outside business involving patronage on the part of the
Employees. Violation of this rule will result in discharge.
Shover's testimony is undisputed that these plant rules, which are part of the
printed agreement, are the result of negotiations and agreement with the Union down
through the years. And, as noted heretofore, Smith himself was president of the
lodge at the time the current contract was negotiated and executed.
Credible testimony of the employees concerned, in large part corroborated by
Shover or other supervisors, establish that management similarly threatened others
with discharge and demanded surrender of cards in their possession . Such in-
cidents are summarized:
(a) Employee Larry Crawford on May 2 was working the second shift. Fore-
man Redmond approached him and asked if he had any cards in his possession.
Crawford opened his toolbox and turned a number of application cards face up
so Redmond could see them. Redmond took the cards from the toolbox and put
them into his pocket. Crawford protested that these cards were his personal prop-
erty. Redmond kept them, declaring that they "had to go to Mr. Shover." As
a witness Shover admitted that he received the cards turned over to him by Red-
mond, and that the employee was brought to his office where he was told by him
that "we would review his situation and see him later." On May 9 Shover issued
Crawford the same final warning notice as that given to Smith and described above.
(b) During his lunch period on May 2 or 3 employee Gibbons distributed a
number of cards to fellow employees on company premises and some were re-
turned to him signed. The next morning Superintendent Behrens asked him if
he had been passing out cards. Gibbons admitted the fact but replied in the nega-
tive when Behrens asked, "Have you got any?" The superintendent then asked if
he could look in his toolbox. "Certainly," replied Gibbons. Behrens searched the
toolbox carefully, found none, and asked the employee if he had any on his person.
Gibbons said, "No." Behrens then said, "You know, you are subject to discharge."
Gibbons protested that the "Taft-Hartley" law permitted his conduct. The super-
intendent answered- "The heck with the Taft-Hartley law. We don't work by that,
we work by our own rules " A week or so later Behrens took Gibbons to the
office, where Shover gave him his "final notice" containing the language quoted
above.
The following findings as to management's similar action are based chiefly upon
Shover's own testimony:
(a) After Supervisor DisBennett told him he had heard that employee Johnson
had distributed cards on company property Shover ordered Johnson brought to
his office. He informed the employee that he was violating a company rule "in
distributing cards on company premises," and asked from whom he had obtained
them. Johnson said that Smith had given them to him. On May 9 Shover gave
Johnson a "final notice" similar to those previously described.
(b) Shover instructed Foreman Davis to "contact" employee Vaughn and "ask
if he had cards" and if he had any "to pick them up " Later Davis brought the
employee to his office, together with union cards which had been found either on
the employee's "person, or in his working area." 7 Vaughn was told that he had
violated a company rule, and later was given, in writing, his final warning notice.
(c) Upon information given him by Foreman Redmond the night of May 2,
Shover called employee Gray into his office. When Gray denied that he had passed
out any cards, Shover asked him if he had signed one The employee admitted that
he had. Shover then demanded to know from whom he had obtained the card.
Gray said that he had obtained it from employee Edwards
(d) Shover then went to Edwards and asked "for any cards he had on h;m
Edwards gave him some 10 or a dozen cards, which Shover kept in his desk until
7Davis, as a witness , said that upon his demand Vaughn produced the cards femn his
pocket
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1257
turning them over to General Counsel at the latter 's request. Edwards was also-
given a final warning notice.
(e) Upon the mere claim made to Shover by employee Gibbons that he had been
given a card by employee Allred, the director gave Allred a final warning notice.
(f) Supervisor Miller took cards from employee Bryant, whereupon Shover
issued a written final warning notice to this employee.
More than 40 membership application cards were surrendered to foremen, or
directly to Shover, under conditions above described. Not all were signed, but
Shover admitted that he looked at the cards which bore signatures. None of them
were returned to employees from whom they had been taken.
2. Conclusions
As to the enforcement of the above-quoted rule against "distribution" of applica-
tion cards on company property at any time, it is General Counsel's contention that
by such enforcement the Respondent violated Section 8 (a) (1) of the Act. It is also
his claim that the rule per se is violative of the same section The Respondent urges
that both the rule and its enforcement were warranted by the existing contract.
Confining appraisal to this issue only, for the moment, the Trial Examiner fully
agrees with General Counsel that by this rule and its enforcement the Respondent
has "effectively prevent(ed) any voice of dissent in the plant including any attempt
by employees (at least on company premises) to remove the incumbent bargaining
representative." And "to permit such result would directly conflict with the statu-
tory policy expressed in Sections 7, 9(c) and 9(e)." 8 Furthermore, it would ap-
pear that maintenance of the rule in question is repugnant to both the Constitution
of the United States and Section 8(c) of the Act. The cited "free speech" provision
of the Act expressly states:
The expressing of any views, argument , or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not constitute
or be evidence of an unfair labor practice under any provisions of this Act,
if such expression contains no threat of reprisal or force or promise of benefit.
Since there is a clear and fundamental difference between strike action and the
mere expression or dissemination of a printed "form" on company property, it seems.
needless to meet the counterclaim that a "no-strike" clause is binding although the
right to strike is specifically accorded by the Act.
Furthermore, the Trial Examiner is in agreement with General Counsel's asser-
tion that the situation here existing is distinguishable from that described in North,
American Aviation, Inc.,9 wherein the Board found "not to be regarded as im-
proper" the employer 's application of a similar rule against solicitation during rest
periods-time for which the employees were paid. It held such application as not
"improper" because the charging union itself had entered into a contract with the
employer waiving its right to solicit on time paid for the company.
The Trial Examiner, however, considers himself barred from proceeding along
the avenue of reason to the ultimate conclusion of violation by the Board's dictum
in May Department Stores Company (59 NLRB 976, 981-982). In a footnote the
Board said:
We . find . that the employees embraced by these contracts, on the,
assumption that the latter were entered into by organizations which represented
a majority of the employees in an appropriate unit, have thereby effectively
bargained away their right to engage in union solicitation on the respondent's
premises . Consequently , and so long as the contractual provisions in question
remain in effect, the respondent's prohibition against union solicitation on the
respondent's premises at all times by employees covered by such contracts, is
not to be deemed improper Cf. Matter of North American Aviation, Inc., 56
NLRB 959. [Emphasis supplied.]
There is no dispute that these dissident employees , engaged in self-organization
of a rival bargaining representative , were at the material time still "embraced" by
the contract in existence or that the contract itself is valid . The above-quoted Board
decision therefore requires the conclusion that the right of the employees herein in-
volved to solicit at any time on company premises had been "effectively bargained
away." From this conclusion it follows that the Trial Examiner cannot find, as
8 Section 7 permits "self organization" ; 9(c) the filing of a petition for decertification ;
and 9 (e) the filing of a petition for certification.
P 56 NLRB 959
1258 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
General Counsel urges, that the rule per se, or its proper enforcement, are violations
of Section 8 (a) (l) of the Act.
It is amply clear from the record , however, that in enforcing the rule the Respond-
ent went far beyond "proper" and lawful conduct. As found above, employees were
required to surrender cards, reveal the identity of their source, questioned as to
whether they had signed any, and generally subjected to unlawful inquisition. Such
conduct by responsible company representatives , acting under orders from the Re-
spondent's top official, was clearly violative of the Act. And the issuance of "final"
warnings under such circumstances became, in effect , a threat of economic reprisal-
discharge-if employees in any manner voiced interest on company property in the
rival labor organization. It will therefore be recommended, hereinafter, that the
Respondent strike from its records such "final" notices and so notify the employees
concerned.
C. The discharge of Bernard Smith
1. The facts
The opposing contentions as to the reasons for Smith 's termination of employment
have been described in section III, A , above , as well as this employee's leadership in
organizing the independent group.
There is no dispute that Smith was indefinitely suspended on May 25 and served
with his "termination notice " on June 11, 1962. Nor is there any dispute as to the
fact that prior to the discharge there existed factors upon which General Counsel
bases his claim of unlawful discrimination : ( 1) Smith's known leadership in the
dissident labor organization which Shover refused to recognize ; and (2) the filing of a
charge on March 29, 1962 , by this organization alleging various violations of the
Act (upon which no complaint was issued ) and the filing by the same organization
of the charge on May 10 in Case No. 13-CA-4875, herein involved, of which the
Respondent received notification on May 15. And in the preceding section of this
Intermediate Report it has been concluded and found that management engaged
in unlawful conduct in demanding that Smith , among others, surrender application
cards which were their property . In the opinion of the Trial Examiner General
Counsel established a strong prima facie case.
On the other hand , there is small dispute in the record as to the actual occurrence
of the incidents listed on Smith 's termination notice , quoted above, and asserted
thereon as having been the reason for discharge . To the Trial Examiner it appears
unnecessary to describe in any detail all of these several matters. Except for the
distribution of application cards on company property no written warning notice, final
or otherwise , was given to Smith , so far as the record shows.
The issue of "insubordination" and "being absent without permission ," however,
requires review , since the events themselves immediately preceded suspension.
Without obtaining permission or previously notifying his supervisor of his intent,
Smith did not report for work on Monday, May 21. He went to Chicago, con-
sulted with attorneys, and visited the Board's Regional Office. Upon reporting for
work Tuesday morning Foreman Stine cautioned him about such absences , pointing
out that the department was busy and they needed him. (It is undisputed that about
half the department of some 18 employees had to work overtime the Saturday of that
week.) Smith then asked for permission to be off the following Thursday to go to
Washington. The foreman said they would have to seek such permission from
Shover and the two went to the latter's office.
There is sharp dispute as to the exchange of words in Shover 's office . Smith testi-
fied that after he had admitted, in reply to Shover's query. that no one at the Board in
Washington had requested his presence , Shover said : "Inasmuch as you have filed
charges against the Company, I am going to deny you the right to go to Washington,
or the time off " Both Shover and Stine flatly deny that this statement was made.
The Trial Examiner believes them and not Smith. Not only was Shover a frank and
straightforward witness but the inherent probabilities of the circumstances provide no
ground for believing that he would so openly violate the Act. At least two charges
had been filed against the Respondent by the organization headed by Smith before this
date, and Smith makes no claim that Shover or anyone else connected with manage-
ment said anything about them until this occasion. For many years Shover had dealt
with Smith and his predecessors in the IAM and some knowledge of the Act may
reasonably be presumed to have been possessed by him. While it would be short of
reasonable to suppose that Shover had welcomed the charges, it seems to the Trial
Examiner that if he were so lacking in normal common sense as to have made this
statement on Tuesday he would have , for the same reason, ordered his immediate
discharge that morning-since Smith had violated the rule about asbences on
Monday and previously had received a final warning notice.
GALE PRODUCTS, DIV. OF OUTBOARD MARINE CORP. 1259'
According to Shover , after learning from Smith that there was to be no hearing in
Washington and that he had not been requested to appear , he told the employee
that because they needed him in the department he "didn 't feel" he should be per-
mitted to be off. Upon this Smith replied that his atttorneys could takes care of the
matter and so he said , "Then, we haven 't any problem." 10
It is clear that Smith was not granted permission on this occasion to be absent
the following Thursday. And Smith's resentment is revealed by his own testimony:
After he refused me the time off, I did say there would be a day of reckoning.
And immediately Mr. Shover turned to Mr. Stine and said , "Do you hear that, Mr.
Stine? Did you hear that? Barney has threatened me." And I said , "If I ever
threaten you, It will never be with words."
And that Smith was well aware of the probable result if he remained away from
work , after permission had been denied , is shown by his further testimony:
As we were leaving the office I said to him, "What is going to happen if I go to
Washington ?" He said, then I would suffer the consequences.
As previously noted , Mr. Smith did go to Washington-without permission-and
the next day upon reporting for work was indefinitely suspended.
2. Conclusions
Despite the appalling array of other possible reasons for suspension and discharge,
advanced by both General Counsel and the Respondent , the one clear and impelling
reason, in the opinion of the Trial Examiner , was the employee 's insubordinate act
in again-the second time in the same week-failing to show up for work without
permission.
Under the circumstances described above, the Trial Examiner cannot adopt Gen-
eral Counsel 's argument in his brief that Smith 's absence without leave was but a
"pretext" and that an inference is warranted that he actually was discharged for
his leadership in and activity on behalf of the Charging Union. Where there exists
as clear and direct evidence as is contained in Smith 's own testimony as to what the
"consequences" would be if he took the day off, it is needless to search for inferences.
Nor can the Trial Examiner find, as General Counsel urges , that Shover 's refusal
to give Smith permission to come to Washington was in violation of Section 8(a) (4).
The one case he cites-Chautauqua Hardware Corporation ( 103 NLRB 729)-is
inapposite . There a formal hearing was involved and the employee 's presence there
was "advisable ," according to the finding of the Trial Examiner as adopted by the
Board, to assure proper presentation of the union 's case at a representation hearing.
Not only here is there an absence of proof of anything except Smith 's desire to
come to Washington with his attorneys to consult with someone at the Board, but
there is also undisputed evidence of overtime in Smith's department that week to
support management 's claim that his presence at the plant was necessary-particu-
larly since he had already taken 1 day off the same week without permission. It may
hardly be reasonably argued that because Shover did not fire him for taking off on
Monday without permission he condoned such conduct and was required to give him
Thursday off also.
In short, the Trial Examiner concludes and finds that the termination of Smith's
employment on May 25 and discharge on June 11 was not in violation of Section
8(a) (1), (3 ), and (4 ) of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent set forth in section III, above , occurring
in connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
10 Support for Shover ' s version is found in Smith ' s own testimony : "He (Shover) said,
'Is it necessary for you to go" and I said, 'I think it is . But, however , if I am denied
the i igh,t, someone will go to Washington ' '
11 Shaver's explanation as to the delay in issuing the actual discharge notice appears
reasonable He wished to obtain approval of other company officials, action understand-
able in view of Smith 's long prominence in union affairs at the plant and the fact that
there were already two charges outstanding against the Respondent
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in violation of Section 8 (a)( I) of
the Act by conduct exceeding the permissive in enforcing its no -solicitation rule, the
Trial Examiner will recommend that it cease and desist therefrom and take affirma-
tive action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Marine Motor Lodge No. 1659 (by whatever name it may now be known) is
a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
4. By terminating the employment of Bernard Smith , the Respondent has not en-
gaged in unfair labor practices within the meaning of Section 8 ( a) (1), (3), and (4)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that Gale Products,
Div. of Outboard Marine Corp., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Seizing or demanding the surrender of application cards or other like material,
pertaining to any labor organization , from any employee.
(b) Interrogating employees as to whether they have signed cards for any labor
organization or as to the identity of employees from whom such cards were re-
ceived, in a manner violative of Section 8(a) (1) of the Act.
(c) In any like or related manner interfering with, restraining , or coercing em-
ployees in the exercise of the right to self-organization , to form labor organizations,
to join or assist any labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Expunge from the personnel records the final warning notices issued on or
about May 9, 1962 , to any and all employees on the claim of "soliciting and dis-
tributing literature on Company property," and notify each employee involved of
such action.
(b) Post at its plant in Galesburg , Illinois, copies of the attached notice marked
"Appendix." 12 Copies of said notice , to be furnished by the Regional Director for
the Thirteenth Region , shall, after being duly signed by the Respondent , be posted
by it immediately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to em-
ployees 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.
(c) Notify the Regional Director for the Thirteenth Region , in writing , within
20 days from the date of the service of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.13
Finally, it is recommended that the complaint be dismissed as to allegations of
unlawful discrimination against employee Bernard Smith.
"In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
13 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
P & T SUPERMARKET 1261
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner and in order to conduct
our labor relations in compliance with the National Labor Relations Act, we notify
you that:
WE WILL NOT seize or demand surrender of application cards or like material,
pertaining to any labor organization , from any of our employees.
WE WILL NOT demand that you reveal the source of any union material in
your possession.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in any union
activities.
WE WILL remove from their personnel file and destroy all "final notice"
warnings issued to employees on or about May 9 , 1962 , which were issued for
soliciting on company property.
All of our employees are free to become or remain members of any union.
GALE PRODUCTS , DIV. OF OUTBOARD MARINE CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office , 176 West
Adams Street, Chicago , Illinois , 60603 , Telephone No. Central 6-9660, if they have
any question concerning this notice or compliance with its provisions.
Frank M. Thomas and John B. Plecher d/b/a P & T Super-
market and Amalgamated Meatcutters and Butcher Workmen
of North America , Food Employees Local No. 590 , AFL-CIO.
Case No. 6-CA-$510. June 19, 1963
DECISION AND ORDER
On January 25, 1963, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondents filed exceptions to the In-
termediate Report with a supporting brief and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this pro-
ceeding, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modification :
142 NLRB No. 138.