Remington Rand, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1953

103 N.L.R.B. 152 (N.L.R.B. 1953)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMINGTON RAND, INC. (LOUISIANA ORDNANCE PLANT) and INTER-
NATIONAL CHEMICAL WORKERS UNION, AFL. CASE No. 15-CA-4881.
March $,1953
Decision and Order
On December 29, 1952, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed with respect to
such allegations. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report, and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's and the General Counsel's excep-
tions and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.'
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Remington Rand, Inc.
(Louisiana Ordnance Plant), Shreveport, Louisiana, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Prohibiting, by rule or otherwise, the solicitation of union
membership on company property during nonworking time, except
pursuant to such reasonable regulations or controls as may be imposed
on such solicitation, the regulations and controls not to be of such a
character as to deny full access to its employees for the purpose of
effecting such solicitation.
i 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 [ Members Houston , Styles,
and Peterson].
2 The Trial Examiner recommended, among other things, that the Respondent cease and
desist from prohibiting solicitation of union membership on company property during non-
working time and that it rescind its no-solicitation rule in that respect . Because of safety
hazards inherent in the Respondent 's plant, we shall condition such order , as did the Trial
Examiner in connection with the order relating to the distribution of literature outside
the plant, on the Respondent 's right, by agreement with interested unions or otherwise,
to impose reasonable regulations or controls on such solicitation , provided they are not of
such a nature as to prevent full access to the employees for purposes of such solicitation.
103 NLRB No. 25.
REMINGTON RAND, INC. 153
(b) Prohibiting or preventing, by rule or otherwise, the distribu-
tion of union literature on its property located outside its fenced-in
area, except pursuant to such reasonable regulations or controls as may
be imposed on such distribution, the regulations and controls not to be
of such a character as to deny full access to its employees for the pur-
pose of effecting such distribution.
(c) Engaging in any like or related acts or conduct which inter-
feres with, restrains, or coerces its employees in the exercise of their
right to self-organization, to form labor organizations, to joint or
assist International Chemical Workers Union, AFL, or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid and protection, or to refrain
from any and all such activities, except to the extent such rights may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Rescind immediately its published rule prohibiting solicita-
tion, insofar as it applies to union solicitation during the employees'
nonworking and off-duty time, except for such reasonable regulations
or controls as may be imposed on such solicitation, the regulations
and controls not to be of such a character as to deny full access to its
employees for the purpose of effecting such solicitation.
(b) Post at its Louisiana Ordnance Plant copies of the notice at-
tached hereto, marked "Appendix A." a Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent or its representative, be
posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days there-
after 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 Fifteenth Region, in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent discriminated with regard to the hire and
tenure of employment of Richard M. Peer and engaged in interfer-
ence, restraint, and coercion by means of employee interrogation and
surveillance of union activities.
8 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT prohibit, by rule or otherwise, the solicitation of
union membership on our property during nonworking time, ex-
cept pursuant to such reasonable regulations or controls as may be
imposed on such solicitation, the regulations and controls not to
be of such a character as to deny full access to our employees
for the purpose of such solicitation.
WE WILL NOT prohibit or prevent, by rule or otherwise, the dis-
tribution of union literature outside the fenced-in ground of our
property, except pursuant to such reasonable regulations or con-
trols as may be imposed on such distribution, the regulations and
controls not to be of such a character as to deny full access to our
employees for the purpose of such distribution.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
INTERNATIONAL CHEMICAL WORKERS UNION, AFL, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE wILL rescind immediately our published rule prohibiting
solicitation, insofar as it applies to union solicitation during our
employees' nonworking and off-duty time, except for such reason-
able regulations or controls as may be imposed on such solicita-
tion, the regulations and controls not to be of such a character as
to deny full access to employees for the purpose of such solicita-
tion.
REMINGTON RAND, INC. (LOUISIANA
ORDNANCE PLANT) , Employer
By ----------------------------------------
(Representative ) (Title)
Dated -----------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
REMINGTON RAND, INC. 155
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed by International Chemical Workers Union,
AFL, herein called the Union , a complaint and notice of hearing thereon having
been issued and served by the General Counsel on August 27, 1952, and an answer
having been filed by the Respondent, Remington Rand, Inc. (Louisiana Ord-
nance Plant), a hearing upon due notice was held at Shreveport, Louisiana,
between October 20 and 22, 1952, before Arthur Leff, the undersigned duly
designated Trial Examiner. The complaint alleged in substance, and the
answer denied, that the Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the
Act, by : (1) Discharging Richard M. Peer because of his union membership and
activities; (2) interrogating its employees concerning their and other employees'
union membership and activities; (3) enforcing a rule prohibiting the distribu-
tion of union literature on its property; (4) preventing union representatives
from distributing union literature outside its plant gates; and (5) keeping under
surveillance its employees' union activities.
The General Counsel and the Respondent were represented at the hearing
by counsel, and the Union by a lay representative. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence on the issues. Opportunity was afforded all parties to argue
orally upon the record at the close of the case, and to file briefs and proposed
findings and conclusions. Briefs were filed by the General Counsel and the
Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Remington Rand, Inc., a Delaware corporation, through its division, Louisiana
Ordnance Plant, operates a plant near Shreveport, Louisiana, where it is engaged
in the manufacture of ammunition for the United States Government. The Re-
spondent's annual purchases of materials, equipment, and supplies for use at
its Shreveport plant, of which more than 65 percent is shipped from points
outside Louisiana, exceeds $200,000 in value. The ammunition manufactured
for the United States Government, shipped to points outside the State of Louisiana,
exceeds in value $200,000 per annum. The Respondent admits it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, affiliated with the American Federa-
tion of Labor, is a labor organization, admitting to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Louisiana Ordnance Plant, now operated by the Respondent under contract
with the United States Government, occupies a tract of Government land, known
as a reservation , approximately 8 miles long by 3 miles wide. The plant area is
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surrounded by a perimeter fence, broken only by 3 gates , 1 a freight gate and
the others serving as places of entrance and exit for the Respondent 's approxi-
mately 3,000 employees . The main gate, used by the bulk of the employees, is
located on United States Highway 80 which marks the northern boundry of the
property. The fence along that highway-except at the location of the main
gate, more particularly to be described below-is set in about 48 feet from the
edge of the hard pavement . The nearest populated areas reached by Highway
80 are Minden , Louisiana , about 8 miles to the east , and Shreveport , Louisiana,
about 20 miles to the west of the main gate. On the south , the reservation is
generally bounded by the right -of-way of the Illinois Central Railroad However,
between the railroad right-of-way and the southern perimeter fence there runs
a public highway known as the Doyline Road The fence follows this road and
is set in 48 feet to the north of it , except at the point where it is broken by the
Doyline gate , as will hereinafter be more fully described . The Doyline gate is
used largely by those employees , relatively small in number , who live in or near
the town of Doyline, located across the railroad right-of -way, a short distance
from that point. Most , if not all, of the plant employees reach their places of
work by private automobile transportation . They are drawn mainly from an
area within a radius of about 35 miles from the plant property , but some cone
from distances as great as 75 miles.
Inside the fenced area there are numerous buildings housing the plant's
operations . Widely scattered throughout the reservation , many of these are
located at considerable distances from the plant gates.
Because of the nature of the Respondent 's operations , various safety and
security regulations are enforced governing employees ' entrance upon and
departure from working areas. Thus , an employee entering the main gate,
before driving to his working area, is required to show his identification pass
to the sentry at the gate and to another inside At his working area he is
required to go to the "clock house" where he must be identified again and
searched for contraband . He then clocks in and proceeds to another building,
called the "change house ," where he is required to strip off all his clothes,
leave them together with all his personal belongings in a locker , and change
completely into clothes provided by the Company . He is then again searched
to insure that he has nothing on him but the shoes and garments of the Company.
When that is done , he proceeds along a ramp to the particular building in the
work area to which he is assigned , and enters upon the performance of his job
duties. The same process in reverse order is gone through by an employee leaving
the plant at the conclusion of the workday.
Regular working hours for production employees are from 8 a. in. to 4: 30
p. in., with a half hour allowed for lunch . The terminal points of the workday
are the clock-in time and the clock-out time. Up to 15 minutes is allowed
employees after clocking in to change , pass the necessary inspections , and reach
their actual work stations . A similar allowance is given them at the end of
the workday. Normally , employees quit actual work to proceed to the "change
house" at 4: 15 p. m. It is not unusual , however, for employees to leave some-
what before that time on days when they have cleared up their work schedule
ahead of time or when work is slow. This practice has not been discountenanced
by management.
B. Beginning of union organizational activities Peer's participation therein
The Respondent started its operations at the Louisiana Ordnance Plant some-
time in 1951. Apparently , the first efforts to organize plant employees were
made by American Federation of Labor unions seeking to organize craft main-
REMINGTON RAND, INC . 157
tenance employees . Meetings for that purpose were held in early March 1952.
Although the charging Union in this case was not interested in the maintenance
employees , it was represented at these meetings by Arvil Inge , an international
representative . At one of these meetings, Inge met Richard M. Peer, the
employee alleged in the complaint to have been discriminatorily discharged, who,
with another employee named Miller, expressed a desire to have the production
employees organized . Inge decided to conduct an organizational campaign
among production employees . In the latter part of March he moved to a hotel
in Minden to conduct that campaign on an intensive scale.
In the conduct of the Union's organizational campaign, Peer, until his dis-
charge and for some time later, was Inge's principal , and for the first 2 weeks,
his only assistant . Inge advised Peer that he could solicit employees at the
plant before and after work and during lunch periods, but cautioned him not
to do so during working time. As a result of his personal efforts, Peer obtained
employee signatures to some 35 or more authorization cards. The record does
not disclose just how or where these were obtained . But, in view of the strictly
enforced regulations requiring employees before reporting for work to strip and
leave all their clothes and belongings in the locker room, to don the Company's
rocketless work clothes, and then to pass inspection , it may be assumed that
none of the authorization cards were obtained in the immediate work area.
C. The Respondent 's solicitation rule
Employees upon entering the Respondent 's employ are provided with a printed
handbook of some 21 pages. The handbook contains the following paragraph,
captioned "Solicitation":
This plant was built to produce materials for the Armed Forces of the
United States. The only solicitation permitted will be for U. S. Defense
Bonds. Solicitations for the bonds will be controlled by management. It
is desire of management that employees support such worthy causes as Red
Cross, Community Chest Fund, etc., through their local community drives.
The record supplies no information with regard to how this provision was in-
terpreted or enforced before the beginning of union organization , or whether any
occasion ever arose to bring it into play. However, in March 1952, after the
Respondent 's management had received indications of organizational activities
among its employees , one or more supervisors ' meetings-attended by foremen
and up and also by the Respondent's personnel representatives-were called by
General Manager James Ward to explain the Respondent 's position with regard
to employee solicitations on plant property. Those in attendance were told
that the Respondent's rule on solicitation was to be stressed to cover all sorts
of solicitations and that written reports were to be made on all incidents of
solicitation or suspected solicitation . Union solicitation was not singled out,
but those in attendance were left with no doubt that it was included as a
prohibited activity . As appears from Ward 's own testimony , he explained it was
the company policy "that there [ was to be ] no solicitation of any kind whatso-
ever within the confines of the reservation at any time ." So far as appears,
the employees at large were not notified of the Respondent 's instructions to the
supervisors . The Respondent considered the employees to be sufficiently ap-
prised of its policy by the contents of the handbook.
About 2 weeks after the supervisors ' meeting referred to above, specific ref-
erence was made to Peer's suspected solicitation activities at a regular meeting
which Industrial Relations Manager Robert Hawthorne held with the personnel
representatives of the several plant areas . LaVerne Stephens , then an area
personnel representative but since terminated , testified that at that meeting there
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred a colloquy between Hawthorne and Robert Jackson, personnel repre-
sentative of area S where Peer was then working, in substance as follows :
Jackson : About this solicitation, what are we going to do about this
leaderman down there in area S?
Hawthorne: Don't you have something on that man yet?
Jackson: Nothing but horseplay, and the fact that he's been accused of
sleeping.
Hawthorne : Well, you'll have to try to get something because we can't
have that going on.
Stephens testified that although Peer was not mentioned by name, he knew on the
basis of a remark Jackson made to him sometime later that Peer was the subject
of the discussion . Jackson, a witness for the Respondent, admitted he had a
discussion with Hawthorne concerning Peer on the occasion referred to, but
denied the content of the conversation was as described by Stephens' Haw-
thorne, although present in the hearing room, did not testify. On the basis
of my evaluation of the conflicting testimony in the context of the entire record,
and my observation of the demeanor of witnesses giving it, I credit Stephens,
reject Jackson's inconsistent version, and find that Hawthorne and Jackson had
a conversation substantially as stated by Stephens.
D. The discharge of Richard Jf. Peer
Peer went to work for the Respondent as a production line worker in July
1951. In September of that year he was granted an hourly rate increase of 10
cents and promoted to the classification of subforeman, a classification which
the Respondent claims, and the General Counsel denies, was a supervisory one.
As a subforeman, Peer was assigned to a funnel pulling and drilling operation
in a so-called "toxic" building where he performed manual work about half the
time, working along with a crew of from 5 to 12 line workers who were under
him, and spent the balance of his time performing such duties as training and
instructing the men under him, overseeing their work performance, and looking
after the flow of materials and production to insure that work was carried on
without interruption in accordance with work schedules provided him by his
foreman. Considerable evidence was adduced at the hearing on the issue of
whether Peer in this job was vested with and exercised attributes of supervisory
authority as defined in Section 2 (11) of the Act. The evidence will not be
detailed here, nor will the supervisory issue be decided, because Peer's case is
disposed of below on other grounds. After becoming a subforeman, Peer did
not continuously remain on the funnel pulling and drilling operation. Under a
health control plan the Respondent then had in force, employees were periodi-
cally rotated between toxic and nontoxic buildings. They would be transferred
from toxic buildings to nontoxic buildings when their hemoglobin count dropped
to a point where it was considered unsafe for them to remain any longer in the
toxic building. Peer was transferred out of the toxic building twice, once for
several days in the autumn of 1951, and again about 30 days before his discharge.
During the last 30 days of his employment, Peer performed various jobs in non-
toxic areas involving the performance of manual work on his part, not requiring
him to direct in any way the work of others. Peer continued to retain, however,
' Although admitting that Hawthorne on this occasion had said of Peer that he "didn't
think a man should be allowed to get away with something like that ," Jackson testified
that the allusion had been to a "horseplay " incident in which Peer had been involved, and
not to his solicitation activities.
2 Although there is conflicting testimony on this point , Peer's testimony to that effect is
credited and accepted.
REMINGTON RAND, INC. 159
his subforeman classification and to draw his subforeman's rate of pay. On
the basis of the record evidence, it cannot be concluded that the Respondent did
not intend to return Peer to a position where at least a substantial period of
his time would be devoted to directional duties. The General Counsel makes
no claim that the job assignments given Peer during the last 30 days of his em-
ployment were prompted by discriminatory considerations.
When Peer reported for work on Monday, April 14, 1952, the guard refused to
issue his entrance pass, stating it was to be found at the office of Personnel
Representative Jackson. Peer called at the office of Jackson who showed him
the Respondent's handbook for employees, underscored that portion of the above-
quoted solicitation rule reading, "The only solicitation permitted will be for U. S.
Defense Bonds," and informed Peer that he was being terminated for that
reason. When Peer, at Jackson's suggestion, called on Industrial Relations
Manager Hawthorne for further information concerning his discharge, Haw-
thorne's only comment was, "Solicitation."
The Respondent's personnel records set forth the following as the reason
for Peer's discharge :
Involuntary termination-Solicitation-In defiance of the Company rules
did commit acts of solicitation on the dates of 4-10-52 on or about 1615 and
4-11-52 on or about 1610, did interfere with activities of other employees by
comm. of said acts ; said acts were comm. on paid hours.
To support the reason assigned on Peer's termination form, the Respondent
called as a witness Hermie Shows, the superintendent over area S where Peer
was stationed. Shows testified in substance as follows : On April 11, sometime
between 4: 05 p. in. and 4: 15 p. m., as he was entering building 9 to check with the
cleanup foreman in that building, he observed Peer coming down the ramp to-
ward the changehouse. At building 9, which is located between Peer's work
building and the changehouse and is about 400 feet from the former, he saw
Peer stop a cleanup crew proceeding in the opposite direction on their way to
work in building 9. The working hours of the cleanup crew began at 4 p. m.,
their clock-in time, and they were expected to get "dressed out" and to their
actual work station as soon as they could but in no event later than 4: 15. After
stopping the cleanup crew by grasping the arm of one of its members, Peer and
the cleanup crew went into a huddle. Shows passed by the group, saying noth-
ing to them, entered building 9 and conducted his business with the foreman
of that building. Just how long this took, Shows' testimony does not reveal.
Upon leaving the building on his way to his office, Shows noticed that Peer was
still engaged in conversation with the cleanup crew outside building 9. Again
Shows passed by the group without saying anything. Immediately after passing
the group, Shows recalled something he had forgotten to tell the foreman of
building 9 and returned to that building, noticing the discussion was still con-
tinuing. The discussion broke up, apparently soon thereafter. Shows had pre-
viously heard that union activities were being conducted in his work area and
that Peer was a participant in such activities. Shows considered it his duty to
curb solicitation in his working area.
Consequently, after the group broke up, he summoned the cleanup subforeman,
Tennerson, who had participated in the discussion with Peer. He asked Ten-
nerson , "By any chance was the fellow in the mustache [Peer] discussing union
activities with you?" Tennerson replied, "Mr. Shows, I cannot lie, he was."
He also asked Tennerson, "If I am called on to, can I get you to back up that
statement." Tennerson said , "I will." That was the entire interview. Shows
did not reprimand or take other action with regard to the members of the cleanup
crew, but filed a report on Peer setting in motion the mechanics of his discharge.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither Tennerson, who it appears was still employed by the Respondent at the
time of the hearing, nor the other members of the cleanup crew, were called on
to testify. With regard to the act of solicitation stated on Peer's termination
form to have occurred on April 10, the Respondent offered no evidence, and the
only thing in the record relating to it is a somewhat vague statement by Shows
that an unidentified plant guard had informed him that "the same thing had
happened the day before."
Peer, called as a witness for the General Counsel before Shows gave his testi-
mony outlined above, testified generally that he never talked about the Union
in the plant except during lunch hour, before and after work, and during breaks
when no production was going on. Although present in the hearing room at the
conclusion of the Respondend's case, Peer was not recalled to testify concerning
the specific incident adverted to by Shows, and Shows' testimony relating to
Peer's halting of the cleanup crew thus stands on the record undenied and
unexplained.
The General Counsel argues in his brief that Shows' testimony, being hearsay
on this point, may not be relied on for the purpose of proving that Peer was
engaged in solicitation activities when observed by Shows in conversation with
the cleanup crew. The only competent evidence of Peer's solicitation activities,
he says, is that to be found in Peer's own testimony, that he solicited only during
the lunch period and before and after work on his own time. For these reasons
the General Counsel would have it concluded that Peer was in fact discharged
for engaging in protected union activities on his free time. It would follow,
according to his thesis, that Peer's violation of the Company's no-solicitation
rule would provide the Respondent with no defense, as any application of such a
rule to an employee's free time is invalid under well-settled principles of law.
With this analysis proposed by the General Counsel, I am unable to agree. It
is true, of course, that Shows' testimony is heresay on the question of whether
Peer actually engaged in union solicitation activities when observed by Shows
accosting the cleanup crew. But in order to make out its defense that Peer's
discharge was not motivated by discriminatory or illegal considerations, it was
not essential for the Respondent to establish that Peer in point of fact had en-
gaged in a violation of a valid plant rule. It was enough for it to show it had a
good-faith belief that Peer had engaged in such a rule violation, and that its
discharge action was motivated by that belief rather than by a discriminatory
reason. On the question of whether the Respondent entertained and acted on
such a good-faith belief, Shows' testimony of what Tennerson told him, coupled
with what he himself had previously observed. cannot be classified as hearsay.
The Respondent's failure to call Tennerson may go to the weight and credit to he
given Shows' testimony but, contrary to the General Counsel's claim, it does not
go to its competency. The Respondent having adduced testimony that it dis-
charged Peer for what it reasonably believed to be a violation of a valid plant
rule, it was for the General Counsel, if he would override the defense the testimony
was presented to support, to establish I of 3 things-(1) that the testimony relied
upon was under all the circumstances unworthy of credence, or (2) that even if
the Respondent believed Peer to have been guilty of a rule violation the discharge
was in fact rooted in discriminatory considerations with the rule violation merely
a pretext for the action taken, or (3) that the rule pursuant to which the discharge
was effected was, as applied to Peer, illegal as being in derogation of employees
rights under the Act. I think the General Counsel has failed in all three.
As noted before, Shows' testimony of what he observed and what he was told
about Peer 's alleged rule violation was allowed by the General Counsel to re-
REMINGTON RAND, INC. 161
main unchallenged . Peer's testimony earlier in the hearing , that he engaged
in no union solicitation except during the lunch hour and before and after work,
I consider too general and too equivocal to be read as a specific denial of Shows'
testimony concerning his conduct on April 11. Had Peer taken the stand to
deny or explain on some proper basis the particular conduct attributed to him
l,y Shows, or had he denied that his conversation with the cleanup crew in-
volved union solicitation, his testimony if believed might have provided an ade-
quate basis-particularly in light of the Respondent's failure to call Tennerson--
for discrediting Shows' assertions. But though available and in a position to
contradict Shows' testimony if he considered it untrue , Peer was not called as
a rebuttal witness. In these circumstances-and although mindful of the fact
that Shows ' testimony on other and contradicted issues of the case did not
impress me as always reliable-I am unable to reject Shows' uncontradicted
testimony on the matter here in question . I can only accept it at face value,
and find that Shows from what he observed and what he was told believed
in good faith that Peer was engaged at the time in union solicitation in violation
of the Respondent 's rule.
Certain aspects of this case may suggest that the Respondent was prompted
to discharge Peer less by a desire to enforce its plant rule than by one to curb
union organizational efforts in general and Peer's outstanding activities in par-
ticular. Among those which come readily to mind are (1) the emphasis placed
by management upon the enforcement of the plant rule after the Respondent
became aware of organizational efforts among its employees; (2) Hawthorne's
instruction to Jackson "to get something [ on Peer] because we can't have that
going on"; (3) the severe and summary punishment meted out to Peer; and (4)
the Respondent 's ban on the distribution of union literature at and near the
plant gates ( reserved for separate discussing in a following section of this
report ). The question Is whether these considered singly or together sufficiently
rise above the stature of suspicion , reasonably to support an inference that
Peer 's rule violation was not the actual cause of his discharge . On the record
made in this case , I am not satisfied they do. There is no evidence to indicate
that before the advent of union organization , the Respondent 's solicitation rule
was not enforced . Nor is there any to indicate it was ever applied disparately
where union solicitation was involved and where it was not. The enforcement
instructions given supervisors after the beginning of union organization , stand-
ing alone, prove little. The instructions were not confined to union solicitation.
And while such solicitation may have been uppermost in management 's mind,
it is at least susceptible to the interpretation that management foresaw a situa-
tion arising where, because of the organizational campaign , maintenance of
plant discipline required particular attention to the rule and cautioned its super-
visory employees accordingly . Hawthorne 's instruction to Jackson is at best
equivocal . It was given in the course of a conversation about union solicitation
in the plant and , on the record testimony , it cannot be concluded that Hawthorne
was doing more than insisting upon enforcement of the rule against one who was
believed to be violating the rule in a working area, but against whom no clear
evidence had yet been obtained . The fact that no effort was made to discharge
Peer for the horseplay or sleeping in which he is supposed to have engaged tends
to negate an inference that the Respondent was then seeking any pretext for his
discharge . The severe and summary punishment visited upon Peer also proves
nothing in itself. Without proof that other employees were unpunished for
violations of the same or similar rules, or that they were subjected to lesser
disciplinary measures-and there is none in this record-no finding can be
made that the discharge of Peer departed from the norm . Although the Re-
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 's ban on the distribution of union literature does disclose an illegal
resistance on its part to employee self-organizational rights, I do not believe
that it provides an adequate basis for discounting completely the Respondent's
defense that it discharged Peer for violation of a plant rule rather than for
organizational activities not proscribed by that rule.
We come, then , to the question , basic to this case, whether the plant rule as
applied to Peer was valid under the Act. The General Counsel asserts it was
not, contending the rule constituted an unwarranted infringement of employee
rights violative of Section 8 (a) (1) of the Act. If in this he is right , the Re-
spondent 's justification for the discharge must fail , and it would follow that
Peer's discharge must be found violative of Section 8 (a) (3).
The controlling principles with regard to rules of this kind are now settled.
They are set forth in Peyton Packing Co., 49 NLRB 832 , 843-4 quoted with ap-
proval in Republic Aviation Corporation v. N. L. R . B., 324 U . S. 793, 803, as
follows :
The Act of course, does not prevent an employer from making and en-
forcing reasonable rules covering the conduct of employees on company time.
Working time is for work . It is therefore within the province of an em-
ployer to promulgate and enforce a rule prohibiting union solicitation
during working hours. Such a rule must be presumed to be valid in the
absence of evidence that it was adopted for a discriminatory purpose. It
is no less true that time outside working hours, whether before or after
work , or during luncheon or rest periods , is an employee's time to use as he
wishes without unreasonable restraint , although the employee is on com-
pany property . It is therefore not within the province of an employer to
promulgate and enforce a rule prohibiting union solicitation by an employee
outside of working hours , although on company property . Such a rule must
be presumed to be an unreasonable impediment to self -organization and
therefore discriminatory in the absence of evidence that special circum-
stances make the rule necessary in order to maintain production or disci-
pline.
As interpreted by the Respondent , its solicitation rule banned union activities
not only on company time , but anywhere on company property even on employees'
free time. To the extent the rule was made applicable to employees ' free time-
without any special justification so far as the record discloses-there can be
no doubt that the rule constituted an unreasonable interference with employee
rights protected by Section 7, and was therefore violative of Section 8 (a) (1).
It is so found . But this finding is not dispositive of the discharge issue. For,
as the Board has held, it does not follow from a finding that a solicitation rule
extending to nonworking hours is illegally too broad in scope, that the applica-
tion of that same rule to working hours is likewise illegal. Rex Manufacturing
Company, Inc ., 86 NLRB 470.
As found above , the rule violation for which Peer was discharged involved the
solicitation by him of members of the cleanup crew after they had clocked in
and were on their way to their work stations , and while he himself was on his
way to clock out after having left his own work station. The precise problem
is to determine whether the time Peer chose to accost the cleanup crew is to be
considered in the nature of working or on-duty time during which it presump-
tively lies within an employer 's province to enforce a rule prohibiting union so-
licitation , or whether it is to be considered in the nature of nonworking or off-
Outy time, which employees are normally free to use as they please and which an
employer presumptively may not legally restrict against union organizational
REMINGTON RAND, INC. 163
activities. Three preliminary observations may be made. First, the fact that
both Peer and the cleanup crew were then on paid time is not necessarily de-
terminative, for, as noted above, employees may be on free time though paid for
that time. Second, resolution of this issue is not in my judgment to be controlled
by the fact that Peer may have left his work station somewhat before the nor-
mal quitting time, for, as found above, the record discloses that management per-
mitted employees on occasions to quit their work stations somewhat before 4 :15
p. in., and there is no evidence to indicate that Peer acted improperly in doing
so on this occasion. Third, to justify the invocation and enforcement of that
rule, it was not essential for the Respondent to show that both Peer and the
cleanup crew were on working or duty time ; if either the solicitor or the solicited
was then on such time, the rule might lawfully be applied.
On the facts of this case, I have substantial doubt whether Peer-who had
already completed his production duties for the day and had only to change and
clock out-may be found to have been on working time when he accosted the
cleanup crew. However, that is a point I need not decide, because I am per-
suaded that, though Peer may not have been, the members of the cleanup crew
to whom he spoke were, within the intent of the principles expressed in the
Peyton Packing case. Although the members of the cleanup crew, who were
required to clock in by 4 p. m., were expected to be at their work stations in
no event later than 4: 15 p. m., it appears that this was simply an outside
limit. Contrary to the assertion of the General Counsel, the record does not
substantiate a finding that 4: 15 p. in., was the fixed time for the commencement
of their work. Nor is there any basis for finding on this record that the period
between 4 p. in. and 4: 15 p. in. was time during which, except for the restric-
tions on solicitation, employees were ordinarily free to utilize as they pleased.
On the contrary, uncontradicted testimony reflects that the cleanup employees,
after clocking in and changing into their work clothes, were expected to proceed
to their work station as soon as possible and to commence their work imme-
diately upon their arrival. Unlike paid lunch or rest periods, the time allowed
employees to reach their work stations, therefore, was not employee free time,
but time which employees were duty-bound to use for a special purpose related to
the conduct of the Respondent's plant operations. In that sense it was on-duty
time. As any interference with employees during that time might delay em-
ployees in reaching their place of work as soon as possible, with resulting im-
pediments to production, I think it was presumptively within the province of the
Respondent, in the interest of maintaining production and discipline, to regulate
the use of that time by nondiscriminatorily applying and enforcing a rule against
solicitation, including union solicitation. For all these reasons, I am led to
the conclusion that the Respondent's solicitation rule, as applied in the dis-
charge of Peer, was not in derogation of employee rights under the Act.
Upholding as t do the Respondent's defense that Peer's discharge for violation
of its rule against solicitation was for cause, and not for reasons illegally dis-
criminatory under the Act, I neither reach nor decide the Respondent's alterna-
tive defense, that Peer was a supervisory employee and therefore not entitled
to the protection of the Act. I find that the allegations of the complaint relating
to discrimination against Peer have not been sustained, and, accordingly, shall
recommend their dismissal.
E. Prohibiting and preventing distribution to employees of literature
by union representatives
The location of the Respondent's plant in relation to surrounding populated
areas has been described generally above. So, too, has the manner in which the
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, drawn from scattered locations over a broad area-reach, enter, and
leave the plant premises. From this it is evident, and it is found, that distribu-
tion of literature to the Respondent's employees away from its property is as a
practical matter virtually impossible. It is also evident, and it is found, that
at least in the nascent stage of organizational activity, communication by outside
organizers with plant employees, which is essential to the exercise by employees
of their right to self-organization, would be unreasonably curbed, unless such
organizers are allowed to contact plant employees before they enter the public
highways leading from the plant gates.
Because of these conditions, the Union early in its organizational campaign
sought the Respondent's permission for the distribution to employees in the
vicinity of the plant gates of handbills announcing meetings to be held in nearby
towns. Sometime in April, shortly after Peer's discharge, international repre-
sentative Inge contacted Plant Protection Director Roden of the Respondent,
advised him that, because of the scattered places and substantial distances from
which employees came, it was virtually impossible for him to contact employees
except through the distribution of handbills at the gates, notified him that the
Union planned on distributing such handbills within the next few days, and asked
him what the Respondent's position would be. Roden replied that he would not
allow such distribution. When Inge persisted, claiming he was within his legal
rights and offering to submit for the Respondent's inspection advance copies of
the handbills, Roden suggested that Inge take up the matter with General Man-
ager Ward.
Inge saw Ward about May 13, 1952, repeating to him the request made of Roden
and the reasons for that request. Ward flatly declared that under no conditions
would the Union be allowed to put out literature anywhere on the plant
reservation.
Shortly thereafter Inge called on Captain Hollingshead of the State police.
Advising Hollingshead of the Union's desire to distribute announcements of
union meetings and of the Respondent's refusal to allow such distribution on
reservation property, Inge asked Hollingshead whether the police would object
to distribution conducted at the stop signs placed on the shoulder of U. S.
Highway 80 for cars entering that highway from the reservation' s main gate.
Hollingshead, according to Inge's credited testimony, said he had no objection'
Thereafter, the Union distributed handbills to the Respondent's employees on
two occasions-once at the main gate on May 13, 1952, and again several days
later at the Doyline gate-with the results described below.
The main gate is not simply a break in the northern perimeter fence parallel-
ing Highway 80. At the point of its location, the fence recedes sharply from the
highway in a southerly direction to form outside the fence but to the south of
the highway a pocket roughly rectangular in shape covering an area about 200
feet wide along the highway and 300 feet in depth. In this pocket are located
the Respondent's personnel building and another nonproduction building as well
as parking lots used by visitors and employees working in the outside buildings
though not by production employees stationed inside the fenced area. The actual
break in the fence is located at the southern end of the pocket, 300 feet to the
south of Highway 80. At that point there is located a sentry house at which
employees must stop for identification when entering or leaving the plant. A
road from inside the fenced-in area runs past the sentry house into Highway
80 and at right angles to it. When this road reached a point about 75 feet from
• According to Hollingshead, he told Inge he had no objection to the distribution on the
reservation over which the police had no jurisdiction, but he did not want handbills dis-
tributed on the highway itself.
REMINGTON RAND, INC. 165
the highway, it fans out into 2 branches, forming a Y, 1 fork of which veers
toward the east for cars headed along Highway 80 toward Minden, and the other
toward the west for cars destined for Shreveport. At the right of each fork
and about 10 feet from the paved portion of the highway are traffic stop signs.
The signs, although located on reservation land, are actually at points which
would have been outside the fence line had the fence followed its normal course
along the highway without being broken by the gate pocket.
On May 13, 1952, international representatives Inge and Doya , along with
Peer (who after his discharge was given a paid position by the Union), arrived
at the main gate at 3: 45 p. in. Stationing themselves alongside the traffic stop
signs, they distributed from that point to employees leaving the plant printed
announcements of a meeting at Minden the following evening. Distribution was
made to a small segment of the employees leaving at 4 p. in., as well as to the
main group whose quitting time was 4 : 30 p. in. It was completed about 4: 45
p in. The distribution was observed by 2 State policemen controlling traffic at
that point, by 2 others who arrived in a patrol car while it was being conducted,
and by the plant guards . The union officials were not molested during their
distribution. However, at a midway point of the distribution, 1 of the police-
men in the patrol car was joined by 1 of the company guards and with him, en-
tered the plant past the sentry house. Reappearing just about the time distribu-
tion was completed , he approached the union representatives and asked them
whether they did not know they were on Government property . Inge expressed
the view that he was not on reservation property , insisted that even if he were he
was acting within his legal rights, and pointed out, moreover , that he had re-
ceived Captain Hollingshead 's advance approval . But the policeman remained
firm. He told Inge he would not argue with him, that he would not allow the
distribution at that point or at any point on the highway side of the sentry gate,
that he was following Captain Hollingshead 's orders, and that If Inge wanted
to know why Hollingshead had changed his mind , he should see Hollingshead.
Inge did not pursue the matter further . So far as appears , no additional attempt
was ever made by the Union to distribute literature at or near the main gate.
The south , or Doyline gate, like the main gate, consists of a pocket formed
by a recession of the south perimeter fence which at all other points parallels
the Doyline highway about 40 feet to the north of it. The pocket is roughly
trianguler in shape, about 250 at its base along the Doyline highway, and, at
the point where the actual fence entrance appears, it is about 100 yards to
the north of the highway. There are no buildings located in this area. On
the other or south side of the Doyline highway, paralleling it at a distance
of some 40 or 50 yards from the highway is the right-of -way of the Illinois
Central Railway. A road from inside the fenced area runs through the break
in the fence toward the Doyline highway at roughly a right angle to it. Near
the point where it reaches the highway it branches out into 3 divisions. One
fans out into the Doyline highway in an easterly direction for eastbound
traffic along that highway ; the other in a westerly direction for the westbound
traffic ; while the third or middle branch intersects the highway , continuing its
southerly course on the other side across the land lying between it and the
railroad , and across the railroad tracks, toward the nearby town of Doyline.
The branching roads form 2 triangular islands to the north of the Doyline
highway, each with its base on that highway . Traffic-control signs require
vehicles leaving the plant to stop before entering or crossing the Doyline highway.
The stop signs are located at the right of each branch about 10 feet before the
paved portion of the highway.
257965-54-vol. 103-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uncontradicted testimony reflects, and it is found, that prior to the events
described below, jurisdiction over the policing of the open area to the south
of the actual fence line had been exercised by the local parish authorities,
and not by the Respondent's plant guards.
Several days after the distribution of literature at the main gate, two union
representatives, Peer and Stephens, attempted a similar distribution at the
Doyline gate. Arriving at about 4: 15 p. m., they took up positions by the
traffic stop signs located on the islands immediately to the north of the Doyline
highway. They began their distribution at 4: 30 p. m., when employees began
to leave the plant. They were twice interrupted in their efforts. The first
occurred about 5 or 6 minutes after handbilling began. At that time, Lieutenant
Hortman of the Respondent's plant-protection force drove from inside the fenced
area to where Peer and Stephens were handbilling, told them they were on
the Respondent's property, and ordered them to move to the other or south side
of the Doyline highway. Although protesting, the union representatives obeyed
the order. They moved across the Doyline highway and resumed their hand-
billing on the road leading to Doyline on the south side of the highway, with
less success, however, because vehicles instead of stopping were gaining speed
at their new positions. After they were at their new positions but a few
minutes, they were again interrupted. Lieutenant Hortman crossed the road,
came over to them, stated he had made a mistake in his previous instruction,
and declared that all the land up to the railroad tracks belonged to the Respond-
ent. He now ordered the union representatives to move across the railroad
right-of-way. One of the union representatives, Stephens, began to argue the
point, declaring he would not recede further. But Hortman, pointedly tapping
the revolver at his side, insisted. And as-in the words of Stephens-the
union representatives did not have "the difference" on them, they moved as
uireeted.
These are the basic facts upon which the General Counsel relies to establish
the complaint's allegations that the Respondent unlawfully enforced a rule
prohibiting the distribution of union literature on its property and that it unlaw-
fully prevented union representatives from distributing union literature outside
its plant gates.
Reserving for the moment the question of legality, I believe the record clearly
supports a finding of the existence of the alleged prohibitory rule and its en-
forcement. The rule, to be sure, was not a formalized one, in the sense of being
a published or printed one, except, of course, to the extent that it may, and I
think must, be deemed part of the Respondent's general no-solicitation rule,
which, as interpreted by the Respondent, was generally applicable anywhere on
the reservation. In any event, it is unimportant that the rule against distribu-
tion was not a formalized one, or even that it may not have been included within
the intent of the no-solicitation rule. The important thing is that the prohibi-
tion existed and was applied, and of that there can be no doubt. Its existence
is unmistakably reflected by General Manager Ward's assertion to Inge, when
the latter sought to arrange for handbilling the employees, that the Respondent
would under no conditions consent to the distribution of literature on plant
property. It is confirmed by the testimony of Joe T. Greer of the Respondent's
plant-protection force, who as a witness for the Respondent, asserted that he had
received official instructions that no literature of any kind could be passed out
anywhere on reservation grounds. So, too, there can be no doubt of the en-
forcement of the rule. Even if the Respondent is correct in its position that
there is insufficient basis for attributing to the Respondent the actions of the
police officers outside the main gate, the conduct of the Respondent's plant
REMINGTON RAND, INC. 167
guard at the Doyline gate in forcing distributors of union literature across the
railroad tracks unquestionably represented official action of the Respondent. In
its brief, the Respondent admits "that it did, through a member of its Plant
Protection Force, ask the union representatives to move to other locations (off
the Government property) to pass out their handbills." The action of the plant
guard in that respect factually supports the allegation that the Respondent pre-
vented union representatives from distributing literature outside the plant gates.
What, then, of the legality of the Respondent's conduct? It is, of course, no
defense to the Respondent simply to say that it was enforcing a rule regulating
the use of its own property. It is now a matter of settled law that an employer's
right to regulate and control the use of his property is not an absolute one.
Employees, too, have certain rights. Among them, conferred by the Act, is the
right to have unions inform and communicate with them on matters involved
in their choice of bargaining representatives Thomas v. Collins, 323 U. S. 516,
533-4; N. L. R. B. v. Le Tourneau Company of Georgia, 324 U. S. 793. Of course,
employee rights are not absolute either. And where they come in competition
with other rights, such as employer property rights, the problem becomes one of
accommodation. An employer may exercise his right to regulate his business
and control his property, but he may not do so in such a manner as unreasonably
to trespass upon employee statutory rights. Where it appears that it is im-
possible or unreasonably difficult for a Union to distribute its literature to em-
ployees entirely off the plant property, where it appears that the distribution is
sought to be conducted on nonworking time, away from the immediate work
area, and without interference with the employer's business operations, and
particularly where, as here, the distribution is sought to be conducted not only
outside the plant itself, but even outside the fenced-in plant grounds, the Board,
with court approval, normally holds an employer's prohibition against distribu-
tion so unreasonable an impediment upon the exercise of employee rights as to
constitute a violation of Section 8 (a) (1) of the Act. See, e. g., Le Tourneau
Company of Georgia, 54 NLRB 1253, enfd. 324 U. S. 793; Carolina Mills, Inc.,
92 NLRB 1141, enfd. 190 F. 2d 675 (C. A. 4) ; Caldwell Furniture Company,
97 NLRB 1501, enfd. 199 F. 2d 267 (C. A. 4). And the result reached is the
same though the distribution is sought to be made by outside organizers rather
than by plant employees. Caldwell Furniture Company, supra.
The Respondent argues, however, that this case is different. It contends it
acted as it did in order to prevent traffic and related hazards on its property,
and that therefore reasonable justification existed for its curtailment of em-
ployee rights. To support that defense, the Respondent adduced testimony to
show that at the end of the day shift, traffic is normally congested along the
roads leading from the fenced-in area, and at the main gate the traffic is fre-
quently backed up from the highway to a point well inside the inner gate. It
also adduced testimony to show that the exit roads are extensions of the main
street which bisects the plant grounds and on which are located the plant fire
station and hospital, and that in the event of an emergency that street would
have to be used by fire engines and ambulances. The Respondent supplemented
this factual testimony with opinion testimony of Joe T. Greer, a former member
of the State traffic department and now a sergeant on the Respondent's plant-
protection force. Greer gave it as his view that the distribution of literature
to employees leaving the plant would have the effect of distracting the attention
of drivers and also of breaking up the rhythm of the traffic movement, thereby
causing vehicles to move less safely. He also expressed the opinion that such
distribution would have the effect of slowing down traffic and causing it to pile
up still further along the main street inside the plant with resultant obstruction
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the movement of fire engines and ambulances in the event of an emergency.
The Respondent, however, offered no testimony to show that when it interfered
with the handbill distribution at the traffic stop signs near the Doyline highway,
it did so because there was then a traffic tieup. Nor did it seek to contradict
the testimony of the General Counsel's witnesses, that the only reason given
the union organizers at the time was that they were on reservation property.
On the entire record in this case, I am left unpersuaded that the traffic
hazards of which the Respondent speaks, to the extent they existed at all, were
so substantial in degree as reasonably to justify a departure from the holdings
in the Le Tourneau and related cases ; nor do I believe that the Respondent's
defense in that regard is more than a rationalization for conduct in fact in-
spired by other considerations.
The distribution points the union organizers selected-at the traffic stop signs
where vehicles normally came to a halt-were such as to insure the least pos-
sible distraction for drivers or disruption in traffic rhythm. When it is borne
in mind that the cars, which leave the plant in single file, are required, while
still inside the fenced-in area, to stop twice for identification purposes, once at
an inner gate and again at the sentry gate, and that the exit roads before reach-
ing the stop signs divide into 2 or 3 branches, thus thinning out the traffic at
these points, it is difficult to perceive how the slight pause required for the
receipt of a handbill could congest traffic in the fenced-in area any more than it
has already been congested by the required inspection stops. But even if
Greer's opinion testimony is accepted, the additional delay could at most be
a slight one, not extending over several minutes.` It is undoubtedly important,
particularly in a munitions plant, to keep traffic lanes clear for emergency use
by fire engines and ambulances. But, even without distribution, it appears
that congestion of the Respondent's traffic lanes was the rule rather than the
exception at shift change time. And I do not believe that it would have added
appreciably to the already existent obstructions to fire engines and ambulances
for the Respondent to have allowed the Union to distribute its handbills at the
traffic stop signs.
In any event, I am satisfied this was not the real reason for the Respondent's
prohibition. No mention was made of it by Ward to Inge when the latter sought
advance approval for the distribution of literature outside the plant gates. Nor
did Ward at that time show any disposition to discuss with Inge the possibility
of allowing distribution to be conducted under regulated conditions which might
avoid interference with the movement of traffic. Instead, Ward took the flat
position that under no conditions would he allow literature to be put out any-
where on the plant reservation. In that respect his position was simply con-
sistent with his interpretation of the Respondent' s no-solicitation rule. The
foundation of both, I think it clear, was the Respondent' s erroneous belief that
it had a right that was an absolute one to control activities anywhere on its
property, even where union activities were involved. That this, rather than a
desire to regulate the flow of traffic so as to avoid hazards , essentially motivated
the Respondent in curbing the distribution of union literature outside the
fenced-in grounds, is for me convincingly confirmed by the conduct of the plant
guard in ordering the union organizers first from their posts at the traffic signs
4 The record shows that the handbilling at the main gate which began at 4 • 30 p. m
was fully completed by 4:45 p. m The Respondent offered no evidence to show that
the traffic movement was actually delayed at that time . And it is unreasonable to assume
that the volume of traffic then leaving the plant could have under any circumstances
flowed by in appreciably less time.
REMINGTON RAND, INC. 169
and later from the far side of the highway, not because they were disturbing
traffic, but because they were allegedly on property belonging to the Respondent.
It is concluded and found that the Respondent, by enforcing a rule prohibiting
under any and all conditions the distribution of union literature on its property
outside the fenced-in area, and by forcibly preventing union representatives
from distributing union literature outside its plant gates, interfered with, re-
strained, and coerced employees in the exercise of their rights under Section 7
of the Act.
F. Alleged surveillance of union meeting
On Wednesday evening, May 14, 1952, the Union held an organizational meet-
ing at the Odd Fellows Hall in Minden. The General Counsel sought to estab-
lish that the Respondent, through General Manager Ward and other manage-
ment officials, engaged in surveillance of that meeting.
Minden's business district, located on its main street, is but a few blocks
long. The Odd Fellows Hall is located on the second floor of a building lying
in the heart of that district. Although facing the main street, it is entered
from an alley cutting from the main street to the next street paralleling it.
Minden's hotel, the Imperial, its only theatre, and its principal shops are all on
the main street in the immediate vicinity of the hall.
Inge was the Respondent's principal witness on this phase of the case, but
2 other witnesses, Peer and Isaac Rogers, also touched on it. Inge testified :
About 7: 30 p. in., while waiting for the meeting to begin, he observed Ward
and a man he did not know pass the building where the hall is located, walk
down the street for a 100 feet or so, cross the street, enter a drug store, reappear
in about 5 or 10 minutes, walk up the street a few doors, and there stop. Ward
then remained at that point engaged in conversation with passersby during the
entire length of the meeting, which was of short duration. From the point where
Ward was standing, Inge conceded, Ward was in no position himself to observe
the alley, those entering the meeting hall across the street, or those inside it.
According to Inge, he noticed 2 or 3 of the men to whom Ward spoke later move
down the street and stop at a point from which they were in a position to view
the alley, and still later circle the block. He was unable to identify any of them.
Peer and Rogers identified one of the men, who during the evening was seen talk-
ing to Ward, as Hermie Shows, an area superintendent at the plant. The Re-
spondent's witnesses identified another as Paul Hildreth, the Respondent's as-
sistant procurement director, whose work at the plant concerned itself solely with
purchasing. Neither Shows nor Hildreth, however, was identified as included in
the group of 2 or 3 who, according to Inge, had paused near the alley and then
circled the block in which the meeting hall was located.
Ward, whose residence was near the plant, explained his presence that eve-
ning in the vicinity of the meeting hall as follows : On Wednesday nights his
son regularly attended a Catholic Church catechism class at Minden. It was
his custom each Wednesday night to drive his son to Minden to attend that class,
pick him up at the end of the class period, and drive him home.' He would
usually while away the hour or so his son was at the class by going to Minden's
business district where he would meet and talk to acquaintances until the time
came to call for his son. He did just that on the evening of the alleged surveil-
lance. He met Hildreth and Shows near the Imperial Hotel where both of them
were then residing, walked past the Odd Fellows Hall, crossed the street to make
a needed purchase at the drug store, and then went outside on the sidewalk
S Ward's testimony in that regard was corroborated by Father Martin Paluche, pastor
of the church.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where he remained talking to Hildreth and Shows and other acquaintances who
passed by until it was time to pick up his son. Ward denied he was then aware
that a union meeting was in progress across the street.
Hildreth's testimony, to the extent material, was as follows : Both he and
Shows then resided at the Imperial Hotel. Minden is singularly free of activity
in the evening ; there is little for a man of his years living alone in a hotel room
to do but read, go to the single motion picture in town, or window shop along the
few blocks in the business area. It was his regular nightly practice, when he
became bored with his tiny hotel room to wander out into the street, there to
inspect once again the shop windows or to chat with acquaintances. On Wed-
nesday nights it was usual for him to meet Ward outside and talk to him of
mutual friends and common experiences until it was time for Ward to call for
his son. Accompanied by Shows, he met Ward as usual on the evening in ques-
tion, and after Ward had made his drug store purchase, remained outside with
him and Shows as described by Ward. Hildreth admitted he had received a
union handbill announcing the meeting and that he may have known a meeting
was taking place in town. But, he testified, this was a matter of no interest to
him, and even if he had observed people going to the meeting he would not know
who they were for, as one whose work was confined to purchasing, he had no
contact and was unacquainted with the production employees.
The explanation of Ward and Hildreth seems to me plausible. As their pres-
ence in the vicinity of the meeting place, and that of Shows, too, does not appear
to have been out of the ordinary, and as there is no clear proof that either they
or other Respondent representatives actually engaged in surveillance, I find the
allegation of the complaint to that effect unsustained, and shall recommend its
dismissal.
G. Alleged interrogation of employees
The only evidence of interrogation to which the General Counsel points is
Shows' questioning of the cleanup crew's subforeman as to whether Peer had
been discussing the Union with the crew members when he had stopped them on
their way to their work station. It has already been found above, in the dis-
cussion of Peer's discharge case, that Peer's conversation with the cleanup crew
members occurred during their working or on-duty time.
The Respondent contends that Shows' interrogation was designed to deter-
mine whether Peer was guilty of an infraction of the Respondent's rule against
solicitation, and argues that since it was for that purpose, it may not be found
violative of the Act. The record supports the Respondent's factual contention.
And Board precedent supports the legal conclusion the Respondent would draw
from it. The Pure Oil Co., 75 NLRB 539; Smith Lumber Co., 79 NLRB 606. Con-
sequently it will be recommended that the complaint's allegation concerning
interrogation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, to the extent
they have been found to constitute unfair labor practices, occurring in connec-
tion 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 commerce and
the free flow of commerce.
RENIINGTON RAND, INC.
V. THE REMEDY
171
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it be ordered to cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
In connection with the findings of unfair labor practices made and the remedy
recommended for them, the following observations are in order :
It has been found that the Respondent violated Section 8 (a) (1) by interpreting
and applying its rule prohibiting solicitation as extending to union solicitation
(luring employees' nonworking or free time on its property. The complaint
does not in express language allege a violation in that precise form. However,
the validity of the Respondent's no-solicitation rule in its full breadth was directly
involved in the proceeding not only in connection with Peer's discharge but, more
importantly, in connection with the Respondent's prohibition of the distribution
of union literature, to which, as has been found, the no-solicitation rule is in-
tegrally related. Because of the position taken at the hearing by the General
Counsel, the statements made by counsel, and the evidence adduced on that
point, it is clear, and it is found, that the Respondent at the hearing was not
only on notice but was actually aware that the General Counsel in this proceeding
was contesting the validity of the no-solicitation rule in its application to non-
working time. It appears from the record that that aspect of the case was
fully litigated at the hearing. Moreover, it is evident that the distribution of
literature, though involving something more than solicitation, nevertheless also
represents a form of solicitation. If the remedial order in this case were to
proscribe the Respondent's illegal ban on union distribution, but were to leave
undisturbed the illegal part of the Respondent's no-solicitation rule, it would
provide only a partial and inadequate remedy for the unfair labor practices
specifically alleged and found. For all the reasons indicated, it has been deter-
mined to include in the recommended remedial order a provision requiring the
Respondent to cease and desist from prohibiting the solicitation of union mem-
bership on company property during nonworking time, and to rescind its existing
rule on solicitation insofar as it applies to union solicitation during employees'
nonworking time
It has further been found, as expressly alleged in the complaint, that the
Respondent violated Section 8 (a) (1) by enforcing a rule prohibiting the dis-
tribution of union literature on its property outside the fenced-in grounds, and
by preventing union representatives from making such distribution. The Re-
spondent's defense, that the rule and conduct found illegal were necessary to
prevent traffic and related hazards, was rejected partially because it has been
found that the underlying motivating factor was not that assigned in that defense,
but was tied in basically with the Respondent's position that it would under no
conditions permit the distribution of union literature on property controlled by
it. In framing the appropriate remedial order, as in deciding the substantive
issue, I have taken into account the nature of the Respondent's operations and
the possibility that there may be circumstances under which fire and safety
hazards might result if labor organizations were permitted a wholly unrestricted
right to distribute literature anywhere on plant property as long as it was re-
moved from the working area. I have recognized that there may be a need for
some control and some regulation to reduce to an absolute minimum any possible
hazards. At the same time I have borne in mind the necessity of preserving the
freedom of communication essential to the exercise of employee rights to self-
organization, by insuring access to employees on plant property, since it appears
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that effective distribution cannot be conducted away from such premises. I have
attempted to accommodate these conflicting considerations, each to the other,
by framing the recommended order in such a manner as to make clear that while
the Respondent may not wholly ban the distribution of union literature outside
the fenced-in grounds, it may nevertheless, by agreement with interested unions,
or otherwise, impose reasonable regulations and controls on such distribution,
provided only they are not of such a nature as to prevent full access to employees
for purposes of such distribution.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. International Chemical Workers Union, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in 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 affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices, as alleged in the
complaint, by discriminating in regard to the hire and tenure of employment
of Richard M. Peer, by interrogating its employees concerning their and other
employes' union membership and activities, or by keeping under surveillance
its employees' union activities.
[Recommendations omitted from publication in this volume.]
MACKIE-LoVEJOY MANUFACTURING COMPANY, TIMBER PRODUCTS
MANUFACTURING COMPANY DIVISION and UNITED FURNITURE WORK-
ERS OF AMERICA, CIO. Case No. 7-CA-708. March 0, 1953
Decision and Order
On November 28, 1952, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices, and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the Respondent filed excep-
tions to the Intermediate Report, and a supporting brief.
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 [Members Houston, Styles, and Peterson].
103 NLRB No. 24.