Stewart-Warner Corp.

National Labor Relations Board - Board Decisions

Dec 3, 1974

215 N.L.R.B. 219 (N.L.R.B. 1974)

STEWART-WARNER CORP. 219
Stewart-Warner Corporation and Kathleen Walker.
Case 13-CA-12773
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
December 3, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 27, 1974, Administrative Law Judge Sidney
D. Goldberg issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that Respondent Stewart-Warner Corpo-
ration, Chicago, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified.
1. Delete paragraph 1(a) of the Administrative Law
Judge's recommended Order and, in lieu thereof, sub-
stitute the following:
"(a) Promulgating, publishing, or maintaining in ef-
fect any plant rule forbidding employees during non-
working time and in nonworking areas, from circulat-
ing petitions which constitute concerted activities for
the purpose of collective bargaining or other mutual aid
or protection."
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
' In the absence of exceptions to the dismissal of the 8(a)(3) charge, we
adopt, pro forma, the finding of the Administrative Law Judge that the
discharge of Kathleen Walker did not violate the Act
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
After a trial in which all parties participated and had
a chance to give evidence, a decision has been issued
that we violated Section 8(a)(1) of the National Labor
Relations Act, as amended, in the following respects;
(1) by promulgating, publishing, or maintaining in ef-
fect any plant rule forbidding employees during non-
working time and in nonworking areas, from circulat-
ing petitions which constitute concerted activities for
the purpose of collective bargaining or other mutual aid
or protection; (2) by threatening to discharge any em-
ployee who, at such times and at that place, circulates
such petition.
Based upon this Decision, the Board has or-
dered us to post this notice to assure our em-
ployees that any such rule, and any threats made
in support of it, are hereby canceled and with-
drawn; that WE WILL NOT again issue such rule or
make such threats and that WE WILL NOT, in any
other similar or related manner, interfere with,
restrain, or coerce them in the exercise of their
rights, under Section 7 of the National Labor Re-
lations Act, to carry on proper activities for
mutual aid or protection.
STEWART-WARNER CORPORATION
DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: This
case, which was tried before me in Chicago , Illinois , on Feb-
ruary 26, 1974, presents two issues: whether respondent pro-
mulgated an unlawful no-solicitation rule, and whether it
discharged the charging party for engaging in protected ac-
tivities.
The amended complaint,' pursuant to Section 10(b) of
the National Labor Relations Act, as amended (the Act),
alleges that Stewart-Warner Corporation (respondent or the
company), on and after June 25, 1973, interfered with, re-
strained, and coerced employees in their exercise of rights
protected by the Act by promulgating and maintaining a
no-solicitation rule that was not only too broad in its terms,
but which was directed against employees to cause them to
terminate their activities against Local 1031, International
Brotherhood of Electrical Workers, AFL-CIO (the union). It
also alleges that, on or about October 18, 1973, respondent
discharged Kathleen Walker because she engaged in union
and/or concerted activities for the purpose of collective bar-
gaining or mutual aid or protection.
Respondent answered, admitting that it had discharged
Kathleen Walker but denying that it had done so because of
her protected activities and it denied that it had promulgated
and maintained an unlawful no-solicitation rule. The issues
so raised came on for trial before me as set forth above. All
parties were represented; they were afforded an opportunity
Issued February 8, 1974, on a charge filed October 31, 1973
215 NLRB No. 47
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to adduce evidence, cross-examine witnesses, and argue on
the facts and the law. Briefs filed by the General Counsel and
by counsel for respondent have been considered.
For the reasons hereinafter set forth in detail, I find that
respondent, by the statements of Roy DePnest, its general
foreman, promulgated a rule prohibiting the distribution of
leaflets and the solicitation of support in concerted activities
at all times on company property including prior to work and
during break periods, and that it thereby interfered with the
protected activities of its employees. I find, however, that
Kathleen Walker was discharged for cause, namely, insubor-
dination, rather than for concerted or otherwise protected
activities.
Upon the entire record herein, including the demeanor of
the witnesses while testifying, I make the following:
FINDINGS OF FACT
1. The parties
a. The employer
Respondent is a Virginia corporation which operates se-
veral plants, including at least two in Chicago. The plant at
1826 West Diversey Avenue, with which this case is con-
cerned, manufactures gauges and other components for au-
tomobiles and other machines. It admits that it receives more
than $50,000 in imports each year and that it is an employer
engaged in commerce. I so find.
The West Diversey Avenue plant covers a square block and
the building is at least six stones high Its operations are
organized into departments. Those numbered 21, 22, and 24,
all under the supervision of General Foreman Roy DePriest,
are involved in this case. His assistant is Paul Balutis and
there are several "working foremen," not alleged to be super-
visors, at the various assembly lines. The other company
officials involved in this case are Philip Johnson, director of
industrial relations, Lawrence Anderson, personnel director,
and Ronald Eubanks, manager of hourly personnel.
b. The union
Local 1031, Independent Brotherhood of Electrical Work-
ers, AFL-CIO, is admittedly a labor organization and it
represents the production and maintenance employees of Ste-
wart-Warner at the West Diversey Avenue plant. It has a
collective-bargaining contract with the employer, the term of
which covers the period of the activities involved in this case.
Robert J. Meyers is its treasurer and business agent for
Stewart-Warner. Netta Lohrmann is the union steward cov-
ering departments 21, 22, and 24.
2. Summary of events
a. Background
With the single exception described below, the facts herein
are undisputed.
Kathleen Walker was hired by Stewart-Warner on Febru-
ary 28, 1972, as an assembler , and she was thereafter pro-
moted to calibrator. She voluntarily became a member of
Local 1031 about 90 days after the commencement of her
employment. In November 1972, during the negotiation of
the contract between the union and the company, several
employees in the plant, including Walker, were dissatisfied
with the terms being accepted by the union . They also op-
posed its officials and they decided to publish and distribute,
to the employees at the plant, leaflets and a newsletter stating
their views. The newsletter was called "TALK BACK" and was
thereafter issued at irregular intervals of 2 or 3 weeks; it
called attention to shortcomings on the part of Stewart-
Warner or the plant officials and it upbraided the officials of
Local 1031 for doing nothing about the conditions concern-
ing which it complained. The articles in "TALK BACK" were
not signed and there was no disclosure of the names of the
persons involved in its publication.
In January 1973,2 Walker was working on the night shift
in department 24 on the fifth floor. She applied to DePriest
for transfer to the day shift. It was on a Tuesday when she
made her application and DePriest promised her an answer
by Friday. On the same day as she made this application for
transfer, Walker, who is white, and two other female em-
ployees, who are black, received warning slips for poor work.
The three employees concluded that the warning slips were
manifestations of racial bias, 'and they signed and filed a
grievance. The following day Walker told her supervisor that
she no longer wanted the transfer and asked her to so inform
DePnest. A week later, DePriest called Walker to his office
on the second floor and said he had a day-shift job for her in
department 22, located on that floor; Walker said she no
longer wanted to transfer to day work, but DePriest said that
he had "no more use" for her in department 24, that she had
been "poking her nose into things that weren't any of her
business," and that, if she refused to accept the transfer, she
would be "out on the street " She accepted the transfer and
DePriest told her to start in department 22 the following
Monday and "to mind her own business."'
b. The no-solicitation rule
In June, Walker was working in department 21, where her
line supervisor was Charlotte Alexander. Walker and several
other employees were offended by Alexander's conduct in
whistling at them to attract their attention rather than calling
them by name and by her cursing them. Several of the em-
ployees, including Walker, met at the home of another em-
ployee, Erica Krupak, on Tuesday, June 19, and they pre-
pared a petition for signature by the employees. They decided
not to request signatures at once but to determine how many
employees would sign if requested. During the balance of that
week, Walker talked with four or five fellow employees, tell-
ing them that a petition was being prepared, and asking them
whether they would sign it or whether they had other ideas
of how to deal with Alexander's abusive conduct. During the
same time, Krupak had copies of the petition made and, on
Friday, she brought the petition to the plant and gave it to
Walker, who put it in her locker.
On Monday morning , Walker testified, she arrived at the
plant at 7:10 a.m., although her starting time was not until
2 All dates hereafter are 1973
3 This incident occurred more than 6 months prior to the filing of the
charge herein but was presented as "background evidence " DePnest did
not deny the statements attributed to him by Walker
STEWART-WARNER CORP. 221
7:45. She showed the petition to two employees in the locker
room and asked them to sign it; one said she would when
there were other names on it and the other said she was afraid
to do so because she was still a probationary employee.
Walker then took the petition to the line area and showed it
to an employee named Irma, but Irma said she did not under-
stand English. At that point, Walker testified, she was ac-
costed by Alexander who said: "I understand you are getting
up a petition against me," to which she made a noncommittal
comment and Alexander then said: "That is okay. I am
through with you. I am going to the office about it. That is
it," and walked toward the office. Walker testified that she
continued to talk with Irma for a few minutes and, when the
starting bell rang, she went to work. Shortly thereafter Alex-
ander came back and took her to DePriest's office where
there were, in addition to DePriest and his secretary, Assist-
ant Foreman Balutis and the union steward, Lohrmann.
According to Walker, DePnest greeted her by saying: "I
understand you are circulating a petition to get rid of Char-
lotte. Are you?" and, when she answered "No," he said: "If
you are, I will fire you." At that point, Alexander said she
had witnesses and she left the office, returning shortly with
employees Irma, Angela Cordera, and Betty Arsenault. De-
Pnest referred angrily to a leaflet and an issue of "TALK
BACK" that had been distributed that day and said that the
distributions of these "have got to stop!" He then asked Ar-
senault whether she knew anything about "a petition being
circulated against Charlotte"; Arsenault said she had been
asked to sign one the. previous week but refused to say
whether it was Walker who asked her to sign . DePnest then
said to Walker: "If I can prove you are circulating this peti-
tion I will fire you," and sent her back to work. Later that
day, Walker testified, Alexander stated, in a loud voice but
to no one in particular, that she was through with Walker and
was going to get rid of her
The following day, Walker testified, she met Arsenault at
the coffee machine and asked her why she had told DePnest
about the petition; Arsenault answered that she would say
what she pleased and became agitated, saying: "Do you want
to lose your job? I will tell him who asked me to sign."
Arsenault started to walk away and Walker said, she testified
"I will see you after work," whereupon Arsenault answered.
"If you try anything I will break your neck." Walker returned
to work and, shortly thereafter, saw Arsenault and Alexander
in an agitated conversation; both of them were crying, and
they went,toward DePriest's office. Walker was summoned
to the office and, again , found Balutis and Lohrmann there.
DePriest asked Walker if she had threatened Arsenault's life;
she denied it and told DePriest the details of the conversation
at the coffee machine, explaining that her reference to seeing
Arsenault after work was based upon the fact that they both
used the same bus and that she intended to talk with Ar-
senault.
Walker further testified that DePnest thereupon sent for
Arsenault and, when she came in, he asked her whether
Walker had threatened her; that Arsenault said "Yes" and
DePriest asked her what Walker had said; that Arsenault
answered that Walker had said she would "beat her ass"; and
that she, Walker, protested that that was not what she had
said . DePnest then made a remark about bringing in'some
gloves, letting the two of them-her and Arsenault-fight
and then he could fire both of them, but he asked Arsenault
whether she had witnesses. Arsenault said she had, and the
two she named were brought into the office, but they stated
that, while they could see that Walker and Arsenault were
angry, they could not hear what they said to each other.
DePriest then sent Arsenault and her witnesses from the
room, Walker testified, and he said to her. "I don't know
what I am going to do with you, but I know you and Erica
have been circulating a petition against Charlotte. I am going
to have to do something." Walker denied circulating any
petition and DePnest said he was going to suspend her for 3
days. When Walker asked what for, DePnest read to her
from company rule number 1, attached to the collective-
bargaining contract, something about creating a dis-
turbance.' Walker then questioned DePriest about what
he meant by "creating a disturbance" and he answered: "You
and Erica have been circulating a petition. We can't have
petitions going around. I have eight witnesses that you have
been doing that." Walker testified that she asked DePnest to
prove it and that he said- "Betty said that you two were
circulating the petition," whereupon she said that it was Ar-
senault 's word against hers. At this point DePnest said "I
could fire you. I have notes here on everything you have been
doing. You have been involved with threats before."5
Walker again demanded proof and DePnest instructed his
secretary to prepare a warning slip, telling Walker that it was
a "final warning" and meant that, the next time, she would
be fired. He told her she could file a grievance on it and to
go and punch out.
DePnest's testimony concerning this incident differs in
some degree from that of Walker, set forth above, and consti-
tutes the single factual dispute in the case
DePnest testified that, on June 25, Alexander came to his
office, upset, and told him that "Walker was circulating a
petition on the line to get rid of her and she wanted something
done about it"; that he asked her who else knew about it, and
that she named a couple of other employees, whereupon he
called Walker and the other employees, Arsenault, Irma, and
another , into his office. He asked them whether a petition was
being circulated on the line; Walker said "No" and the others
said "Yes," so he said, "I can't stand for lines being disrupted
because of this and we couldn't tolerate it on Company time
and Company property. . ."6 He testified that he sug-
gested that they all go back to work and forget about the
matter; that the employees left; and that he administered no
disciplinary measures that day.
The following day, DePriest testified, Arsenault came into
his office, shaken and crying, and she said that Walker had
threatened her. DePnest called in the union steward and
4 The introductory portion of these rules states, inter aka "The failure of
any employee to abide by these rules will be cause for disciplinary action
which includes discharge in proper cases," and the rule numbered "1" starts
"Causing a disturbance on Company property, such as might be caused by
fighting or attempting bodily injury to another employee
5 DePriest testified that early in 1973 Betty Erle, a "working supervisor,"
complained that she had been threatened by three employees, including
Walker, but the three had denied making-the threats and the matter was
dropped No reliance is placed on this testimony
6 On cross-examination , DePriest testified that he asked Walker whether
she was circulating a petition , that she said "no", and that he then said if
she was "it couldn't be passed out or distributed on Company time or
Company property "
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker After talking with both Walker and Arsenault, De-
Priest gave Walker a 3-day suspension.
Lohrmann testified that on June 25 she was called into
DePriest's office and found Walker and Alexander there.
Alexander was upset and said that Walker "had a petition
going around against [her] to get rid of her." DePriest then
asked Walker if that was so and she said "No," whereupon
Alexander said that there were people who could verify her
statement. DePriest sent for three employees, asked them
whether a petition was being passed around, and they said
"Yes." DePriest then said, according to Lohrmann, that "this
would have to be straightened out and that there couldn't be
any of this kind of stuff going on in working hours."
Walker filed a grievance over her suspension and a hearing
on it was held with company and union officials present on
July 6. At this meeting, the record shows, Walker, Meyers,
DePriest, and Anderson, all made references to the petition
that Walker was charged with circulating on June 25 and the
time of day when she circulated it. Walker testified that
DePriest stated that she had been suspended for circulating
a petition and making threats to Arsenault; that Anderson
asked her whether she had circulated a petition and, when she
said "no," he said: "It is company policy not to circulate a
petition on company time or company property"; and that
Meyers then attempted to determine whether the activity
occurred "on company time."
DePriest admitted that there was some discussion of the
petition at the grievance meeting, but he testified that he did
not recall whether Walker had attributed to him the state-
ment "If you do start a petition you will be fired," and he
testified that he did not remember what was said at the meet-
ing. He admitted, however, that the employees who had been
called in by him on June 25 were again called into the griev-
ance hearing and that they were questioned concerning the
petition, but he denied that he made any statement at this
meeting concerning when petitions were permissible. Ander-
son's testimony also shows that the petition was discussed at
some length at the grievance meeting; he was not, however,
asked whether he made the statement concerning petitions
that was attributed to him by Walker. DePnest testified that
no employee had ever been disciplined for distributing a peti-
tion "on his own time" and Anderson testified that he had
never heard of any employee being disciplined for "distribut-
ing literature or making a speech on Company time or prop-
erty."
It is not disputed that Arsenault was not available at the
time of the grievance hearing because she was no longer
employed by the company and that Walker's grievance was
sustained; she was paid for the 3 days she had been suspended
and the matter was expunged from her record.
c. The discharge of Walker
Sometime in September, the company discharged Roy
Kemp, a black employee at another company plant in
Chicago. The "TALK BACK" group decided to take up his
cause and the leading article of the issue dated October
8-12 carries the headline "REHIRE ROY KEMP " The text of the
article accuses the union of failing to help Kemp and of
helping the company. The next issue of "TALK BACK," dated
October 16, also has a lead article headed "REHIRE ROY
KEMP," but, sharing the upper half of the first page, is an
article entitled "Walkout at Western Electric." The text of
this article states that the walkout occurred without approval
by the union representing the workers there and that Western
Electric's management had called it a "wildcat strike," for the
purpose of discharging the participants. At the end of this
article, in large letters, appears the word "FLASH" and a state-
ment that the workers at Western Electric had "won all their
demands."
According to both Walker and John Strucker, another
employee involved, the "TALK BACK" group of employees met
on October 17 and decided to have a public meeting with the
union officials in the presence of company employees. It was
,agreed that Walker would disclose her participation in the
" TALK BACK" project' either by conducting the meeting or by
making a speech in the employees' cafeteria at lunchtime the
following day; it was also agreed that a "TALK BACK" leaflet
would be distributed the following morning announcing the
meeting in the cafeteria and inviting the presence of Meyers,
the union business agent, and Sam Patitucci, its chief steward.
They agreed that reference would be made to the incident at
Western Electric but that no walkout or slowdown would be
advocated.
The leaflet was distributed early the following morning and
copies came to the attention of Anderson, respondent's direc-
tor of personnel He testified that he notified the cafeteria
manager of the planned incident and instructed him, if there
was "any disruption of any consequence," to call the security
personnel; he also called the security manager, who said that
he had given instructions to his personnel to be ready. Since
Anderson had a luncheon engagement, he instructed Eu-
banks, the manager of hourly personnel, to be present and to
note the events.
The lunch period starts at 11:45 a.m. At a few minutes
before 12, Walker stood up at one end of the dining room,
said "Hello," stated her name and department, and an-
nounced that she was from "TALK BACK". She then said that
it looked like neither Meyers nor Pattitucci would show up
and she began to talk about the case of Roy Kemp; she said
that the company had a reputation for racial discrimination
and did not treat black or Latin workers the same as they
treated white workers, citing a specific case in which a black
man had been suspended for 10 days for visiting his wife, who
worked in another department, during the lunch period; she
then talked about safety and health conditions in the plant,
referring to three accidents the previous week and•cnticizing
the lack of a wheel chair on the third floor. Walker stated that
the salaries of Meyers and the union president were triple
those of the workers and she said that they should be doing
more to represent the workers. She said that the people in-
volved in "TALK BACK" felt that there should be more meet-
ings like this one, that they wanted to discuss reopening the
contract in December, and that they wanted to discuss health
and safety conditions. With respect to Roy Kemp, Walker
suggested that the employees should call both Meyers and
I Walker was chosen, they testified, because she is a woman and more
than half of the company's employees are women. They also took into
consideration the fact that she was pregnant and had stated her expectation
of beginning her maternity leave in December and that, in view of her past
difficulties with DePnest, it was unlikely that she would be permitted to
return to work at the end of her maternity leave.
STEWART-WARNER CORP.
Anderson about it and put suggestions concerning it in the
suggestion box. Walker testified that she referred to the walk-
out at Western Electric but stated that the "TALK BACK" peo-
ple did not advise a strike or a slowdown. She testified that
she said it was a good example of cooperation among black,
white, and Latin workers. Walker testified that she talked for
a few minutes and then sat down to scattered applause. After
lunch, she reutrned to work and worked until about 3 p.m.
The testimony of Eubanks, who was sent to monitor the
incident, did not contradict Walker's testimony. He testified
that she spoke for about 10 minutes and that only the final
2 or 3 minutes were devoted to references to Western Electric,
and he admitted that she had said that she was not advocating
either a strike or a slowdown. He testified, however, that the
tone of her voice, when she disavowed a strike or slowdown,
was "sarcastic."
About 2:30 that afternoon, Anderson returned from lunch
and asked Eubanks what had happened in the lunchroom;
Eubanks reported that Walker had made a brief talk and he
gave Anderson its general contents. Their discussion, Eu-
banks testified, took 5 to 10 minutes.
Anderson testified that, just as Eubanks was finishing his
report concerning Walker's speech, there was a call from
Johnson, the company's director of industrial relations; that
Johnson asked him whether he knew what had happened in
the cafeteria; and that he told Johnson that Eubanks had just
finished giving him a report on it. Johnson instructed Ander-
son to bring both Walker and DePriest to his, Anderson's,
office; he told Anderson to call Walker's attention to the
no-strike provision in the contract and to explain to her the
need to be careful in talking about slowdown.
After receiving these instructions from Johnson, Anderson
testified, he called DePnest and told him to come to his office
and to bring Walker with him. He told DePriest that Walker
had given a talk in the cafeteria but did not go into detail; he
simply instructed DePriest to come to his office with Walker.
DePriest testified that, when he received these instructions
from Anderson, he instructed his secretary to page Walker
over the public address system and that she did so, saying:
"Kathy Walker: to the office" several times during a 2-
minute period. When Walker did not appear in response to
his secretary's paging , DePriest testified, he turned on the
microphone on his desk and, about 8 or 10 times during a
period of about 3 minutes, he called: "Kathy Walker: come
to the officer." There was still no response, he testified, and
then Trudy Rhinehart, the "group captain" of Walker's line,
came in and said to him: "You are paging Kathy Walker and
she said that, if you want her, you can come out on the line
and see her." Upon receiving this message , DePriest testified,
he instructed his assistant, Balutis, to go out to the line and
tell Walker to come to his office and Balutis went out and
returned with the same message from Walker: that if he
wanted to see her, he could come out to the line. DePnest
then telephoned Anderson and reported the situation; Ander-
son said he would "get back to him." Anderson called back
shortly and instructed him to take the union steward and
some witnesses with him and to go out to the line and talk
to Walker.'
8 As it was Anderson who wanted to talk with her, this cannot be con-
strued as an instruction that DePriest should acquiesce in Walker's demand
- 223
DePriest testified that he called the union steward to the
office and, in her presence, he again paged Walker several
times without result. He then took the steward and Balutis
and they went to Walker's work station . DePriest testified
that he asked her whether she had heard him paging her and
she said that she had heard him; that he asked her why she
had not come to the office; and that she said she had "a rate
to make" and did not want to leave her position. DePriest
then said: "Any other time I have called you you have always
come, so now I want to see you in my office," but she said:
"No, I am not going to go to your office." DePriest testified
that he repeated his request and she repeated her refusal; that
their voices were becoming loud and the people in the area
were beginning to stop their work to note what was going on,
so he said: "It leaves me no choice but to terminate you for
disobeying me." When Walker still refused to move, he testi-
fied, he told her that she no longer worked for Stewart-
Warner, that she had been terminated , and he again re-
quested that she go to the office. When she hesitated,
DePriest threatened to have a guard escort her from the
building and Walker finally picked up her things and went to
the office with him. In the office, DePriest testified, he again
asked her why she had refused to come to the office and
pointed out to her that his request might have been based
upon a call relating to illness in her family, but she remained
silent . The notice of termination, signed by DePriest, states
the reason for termination as: "Insubordination-Failure and
refusal to follow foreman' s instructions."
Walker's testimony did not contradict that of DePriest in
any respect. She testified that she heard herself paged first by
DePriest's secretary and then by DePriest himsel' and that
DePnest's voice was loud and angry; that Rhinehart asked
her whether she wasn 't being paged; that, when she said she
was, Rlhinehart asked her why she didn't go to the office; and
that she said she had a rate to make and asked Rhinehart to
ask DePriest to come out to the line. She further testified that
Rhinehart said: "Do you want me to tell Roy that?" and that
she said "Yes." Walker testified that she then heard DePriest
again page her and, shortly thereafter, Balutis came to her
and asked whether she wasn't being paged; she said "Yes"
and Balutis said : "Do you want me to tell him that?" to which
she again said "Yes." Walker testified that she then heard
DePriest page the union steward and they both came out to
the line; that DePriest asked whether she had heard him page
her and she said she had; that DePnest then asked why she
had not come to to office and she said: "Why can't you speak
to me out here?" DePnest then said that it was a personal
matter and that he would discuss it with her in the office, but
she answered: "You can speak here. It is okay with me." At
that, Walker testified, DePriest said: "You are terminated";
he turned to those in the vicinity and said: "Did everybody
hear that? She is terminated." Walker said she said to De-
Priest "Why?" but, without answering her question, he said:
"Are you going to come to the office now or am I going to
have to call the guards to escort you out of here?" and that
she picked up her purse and followed him to his office. When
they were in the office, Walker testified, DePriest instructed
his secretary to type up a termination notice for her and he
told her that it was Anderson who had wanted to see her. She
further testified that DePriest again asked her why she had
refused to come to the office and that she answered that she
224 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had "a rate to make," whereupon DePriest replied: "It do-
esn't matter. You could have written it down on the time
sheet."
3. Discussion and conclusions
a. The no-solicitation rule
The General Counsel contends that the evidence herein
proves that, on June 25, DePnest promulgated a rule prohib-
iting "all petitioning" and that he threatened Walker with
discharge if she did so.
Respondent contends that it is doubtful that the evidence
on this point proves anything, certainly not the establishment
of a too broad no-solicitation rule, and cites, in support of its
argument, four facts from the record: (i) the uncontroverted
testimony of both DePriest and Anderson that "no employee
had ever been disciplined for distributing literature or making
a speech on company property while on his own time" (em-
phasis supplied); (ii) the only written rule on the subject of
solicitation prohibits "making unauthorized collections"; (iii)
there was ample cause for DePnest to believe that Walker
had threatened Arsenault on June 26 when he suspended her;
and (iv) the decision was in favor of Walker on the grievance
she filed over that suspension.
Respondent's contentions are all irrelevant: the matters to
be determined in this phase of the case are: (i) what DePriest
said on June 25 concerning the circulation of petitions and (ii)
whether what he said constitutes the promulgation of a no-
solicitation rule which interferes with, restrains, or coerces
employees in their exercise of rights guaranteed by the Act.
Moreover, whether or not DePriest threatened discharge for
violation of this rule is only partly relevant on this phase of
the case; it may be presumed that the employees to whom a
rule is promulgated will have no doubt that their employer
can, if it wishes, enforce it.'
Turning, now, to the evidence concerning DePriest's state-
ment : Walker testified,that he asked her whether she was
"circulating a petition to get rid of Charlotte [Alexander]"
and that, when the three other employees including Ar-
senault were brought in, he asked them only whether they
knew anything "about a petition being circulated against
Charlotte." Moreover, according to Walker, DePriest's
threat to her was that, if he could prove she was "circulating
this petition," he would fire her.
DePriest testified that his first knowledge of the matter was
received when Alexander came to his office and told him that
"Walker was circulating a petition on the line to get rid of
her." While DePriest's testimony at this point includes a
reference to "the line," it makes no mention of disruption of
work, but its emphasis is upon Alexander's distress over the
circulation of the petition.10 DePriest's testimony shows
9 The interference with employee rights apses from the promulgation and
maintenance of the rule, the company' s failure to enforce it against a particu-
lar employee at a particular time cannot serve to avoid a finding of violation
of the Act based thereon See: Farah Manufacturing Company, 187 NLRB
601, 602 (1970), enfd 450 F 2d 942 (CA. 5, 1971)
10 When he was first asked what Alexander told him, DePnest testified
that she made the above statement and, when asked whether this was all she
said, he answered "Yes " Shortly thereafter DePriest was again asked for
Alexander's "exact words" and he answered "That Kathy Walker was
that he had no personal knowledge of what Walker had done
and Alexander was not called as a witness. Accordingly, there
was nothing upon which DePriest could base a belief that the
line was being disrupted when, he claimed, he said that he
couldn't stand for it being disrupted. Moreover, DePnest's
own testimony concerning his investigation, through his
questioning of the three employees, was directed toward de-
termining whether a petition was being circulated on the line,
not whether its circulation interrupted or interfered with the
employees' productivity On cross-examination, it is to be
noted, DePriest dropped any reference to disruption of work
and testified that he told Walker that a petition "couldn't be
passed out on Comapny time or property."
Lohrmann, the union steward and the only other partici-
pant in that meeting who testified, must be regarded as an
impartial witness, since Walker made herself as much an
irritant to the union as she did to the company. Her testimony
shows that DePnest's sole expressed concern was with the
circulation of a petition and that he made no reference to any
work "disruption."
Finally, Meyers testified that, at the grievance hearing on
July 6, DePriest's own statement of his position was that he
had called in Walker and the other employees because "there
had been a complaint about starting a petition," and DePriest
did not contradict this testimony. Meyers also testified that
the only reference to "disruption" was by Anderson when he
gave that, together with Walker's threat to Arsenault, as the
company's reason for giving Walker a 3-day suspension on
June 26.
In view of the testimony of Lohrmann and Meyers, as well
as that of DePriest on cross-examination, I find that DePriest
did not rely upon any "disruption" caused by the circulation
of the petition and that the references in his testimony to such
"disruption" were afterthoughts. I find that DePriest ad-
dressed himself solely to the circulation of the petition and
that he said that no petition could be circulated "on Company
time or property." I also find that this constituted the pro-
mulgation of a rule and that DePnest had the authority to do
so on behalf of the company."
The basic Board rule concerning solicitation, as set forth
in Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 617
(1962), is that:
an employer may in the normal situation make and en-
force a rule forbidding his employees to engage in such
union solicitation during working time ("working time
is for work"), but that a broad rule banning such activity
during nonworking time is presumptively invalid.
circulating a petition to get rid of her " When again asked whether that was
all that Alexander said, this time DePriest added "And she had the line
disrupted because of trying to get people to sign it " It is to be noted that
respondent did not call Alexander as a witness
i i Walker also testified that, at the grievance meeting, Anderson stated
"It is Company policy not to circulate a petition on Company time or
Company property " Anderson's testimony shows that, although the issue
under consideration was the validity of Walker's suspension on June 26,
there was discussion of whether she had circulated a petition on June 25
Anderson could not recall Walker's statement that DePriest had threatened
her with discharge if she circulated a petition and he did not specifically
deny making the statement attributed to him by Walker In my opinion,
however, this evidence is insufficient for a finding that Anderson made the
statement as testified by Walker
STEWART-WARNER CORP.
Evolving from this basic rule are the individual adjudica-
tions of the Board dealing with specific employer promulga-
tions, particularly those in vague or general terms. The pre-
cise term "working time," used by the Board in its
formulation of the general rule, is quite different from the
phrase "on Company time and Company property" used by
DePriest in promulgating his oral rule. The attempt to pro-
hibit solicitation "on Company time and Company property"
obviously encompasses much more than an employee's
"working time"; there are periods of time during which the
employee is on company property but not at work-when
getting from the entrance to his work station, prior to begin-
ning work, during lunch and break periods, and at other
times when he is not actually working. Similarly, being on
"company time" does not necessarily mean the same thing as
"working time" since getting from the timeclock to the work
station and breaks of necessity, at least, are customarily on
company time."
To the extent, therefore, that the rule is ambiguous, and
conveys to employees a prohibition of protected activity that
is more extensive than permissible, respondent must assume
the burden of the ambiguity it created.13
The rule identical to that promulgated by DePriest, prohib-
iting protected activity" "on company time or property,"
has been repeatedly condemned by the Board as reasonably
likely to be interpreted by employees as a prohibition of solici-
tation during nonworking time.15 In the absence of any evi-
dence showing justification for the rule, I find that DePriest's
promulgation of it on June 25 interfered with, restrained, and
coerced employees in their exercise of rights guaranteed by
the Act and violated Section 8(a)(1) thereof.
Since the promulgation of the rule was an unfair labor
practice under Section 8(a)(1) of the Act, DePnest's threat to
discharge Walker if she violated it was, a fortiori, also viola-
tive of Section 8(a)(1).16
b. The discharge of Walker
There is no dispute concerning the events leading to the
discharge of Walker . The General Counsel contends that
Walker 's insubordination in refusing to go to the office was
not the reason for her discharge , but that the discharge was
the culmination of "a series of disciplinary steps taken against
her by respondent whenever she engaged in protected activi-
ties" and that it was the final step in the company's efforts,
12 DePriest testified that, in each hour, the company considers 8 minutes
as "fatigue time" and does not expect productive work In addition, the
contract contains provisions for 10-minute breaks in each of the two 4-hour
periods of work and there is a provision for a short "clean-up" period before
the end of the day All of these appear strongly to be "company time", i e ,
paid time, although clearly not "working time "
"Avon Convalescent Center, Inc, 200 NLRB 702 (1972), enfd 490
F 2d 1384 (CA 6, 1974), Farah Manufacturing Co, 187 NLRB 601
(1970), enfd 450 F 2d 942 (C A 5, 1971), NLRB v Harold Miller,
Herbert Charles and Milton Charles, Co-partners, dlb/a Miller-Charles
and Company, 341 F 2d 870, 873-874 (C A 2, 1965), enfd 148 NLRB
1579 (1964)
14 That concerted expression of dissatisfaction with working conditions is
protected activity, see K-Mart Enterprises, Inc., 202 NLRB 353 (1973).
15 WIPO, Inc., 199 NLRB 649 (1972); Marlene Industries Corporation,
166 NLRB 703 (1967), enfd. 406 F 2d 886 (C A 6, 1969) See also South-
ern Electronics Co., Inc, 175 NLRB 69, 72 (1969), enfd 430 F 2d 1391
(C.A 6, 1970),striking down, as presumptively invalid, a rule barring solici-
tation "of any kind on company property during working hours "
16 Joseph Horne Co, 186 NLRB 754 (1970)
225
that day, "to warn her against continuing her protected ac-
tivities." The General Counsel also contends that, even if her
insubordination was a reason for discharge, it was not respon-
dent's only reason for discharging Walker and that, but for
her protected activities, she would not have been discharged.
The principal difficulty with the General Counsel' s argu-
ment is that, on this record, it is not convincing. Anderson's
direction to DePnest that he bring Walker to the personnel
office where he could talk with her, although it is clear that
he intended to talk with her about her speech, a protected
activity, does not disclose either animus against such activity
or an intention on his part to punish her for it. DePnest's
request that Walker come to his office, although no reason for
the request was included, was not unreasonable and it was
clearly within DePriest's prerogatives as a representative of
management . Walker's refusal itself, and much more her
manner of refusing, constituted insubordination to a degree
that the supervisor could not tolerate without completely
losing his authority to control or supervise the employees
under his supervision."
Walker's own testimony clearly shows that it was her in-
subordination in refusing a proper request that led to her
dismissal and there is nothing in this record that would justify
an inference that Walker's protected activities, on that day or
at any other time, contributed in any degree to respondent's
action in discharging her. Accordingly, I find that Walker
was discharged for cause and that the complaint, insofar as
it alleges that she was discriminated against for her union or
concerted activities, must be dismissed.
4. The effect of the unfair labor practices upon commerce
The activities of respondent, set forth in findings of fact
numbered "2" and "3," occurring in connection with its
operations set forth in finding of fact numbered "1," 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 commerce and the free
flow thereof.
5. The remedy
Having found that respondent, by promulgating a rule
forbidding its employees from conducting activities protected
by the Act and by threatening them with discharge therefor,
engaged in an unfair labor practice, I shall recommend that
it cease and desist therefrom.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(5) of the Act.
2. The union is a labor organization within the meaning of
Section 2(2) of the Act.
17 DePriest testified that, although Walker's was the most flagrant case of
insubordination that he had encountered, all other employees who were
insubordinate had been discharged No evidence contradicting this tes-
timony was produced
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Roy DePnest is a supervisor of respondent within the
meaning of-Section 2(11) of the Act and acted as its agent
herein.
4. By promulgating a rule prohibiting the circulation of
petitions "on Company time or property," respondent inter-
fered with, restrained, and coerced employees in their exer-
cise of rights guaranteed by the Act and committed an, unfair
labor practice within the meaning of Section 8(a)(1) of the
Act.
5. By threatening to discharge Kathleen Walker if she
circulated a petition "on Company time or property," re-
spondent interfered with, restrained, and coerced employees
in their exercise of rights guaranteed by the Act and commit-
ted an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
6. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, on
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER1e
Respondent, Stewart-Warner Corporation, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Promulgating, publishing, or maintaining in effect any
plant rule forbidding employees from circulating "on Com-
pany time or property" petitions which constitute concerted
activities for the purpose of collective bargaining or. other
mutual aid or protection.
(b) Threatening to discharge employees for circulating pe-
titions of the said nature at the said times or place.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their right to
self-organization, to form, or assist any labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at its plant at 1826 West Diversey Avenue,
Chicago, Illinois, copies of the attached notice marked
"Appendix."19 Copies of said notice, on forms provided by
the Regional Director for Region 13, after being duly signed
by its representative, shall 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 employees are customarily posted. Reasona-
ble steps shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
The allegations of the complaint, insofar as not found by
the Decision to be violative of the Act, are hereby dismissed.
18 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "