The Rogers Mfg. Co.

National Labor Relations Board - Board Decisions

May 13, 1969

175 N.L.R.B. 961 (N.L.R.B. 1969)

ROGERS MFG. CO.
The Rogers Mfg, Co . . and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America , UAW. Case
8-CA-5143
May 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS AND BROWN
On February 26, 1969, Trial Examiner James M.
Fitzpatrick issued his Decision in the above
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 attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent filed
exceptions and a supporting brief. No exceptions
were filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and supporting brief, and
the entire record in this case, and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , The Rogers
Mfg. Co., Akron, Ohio, its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner: This
proceeding under Section 10(b) of the National Labor
Relations Act as amended (the Act) was tried before me
at Akron, Ohio, on November 26, 1968 on a complaint
issued October 21, 1968'as the result of a charge and an
amended charge filed September 6, 1968 and October 16,
1968, respectively, by the International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW (the Union). The complaint
'In the absence of exception , we adopt, pro forma, the Trial Examiner's
finding that the Respondent's no-solicitation rule is not on its face
presumptively invalid.
961
alleged that The Rogers Mfg. Co. (herein sometime called
Respondent or Company), violated Section 8(a)(1) and (3)
of the Act by promulgating and enforcing a no-solicitation
rule and by suspending four employees for three days for
violating it. Respondent filed an answer denying it had
violated the Act.
Upon the entire record, including my observation of the
witnesses, and upon consideration of the brief of
Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, operates a plant
at Akron, Ohio, for the manufacture of automobile parts
and other products. It annually receives there from points
outside the State of Ohio goods valued at over $50,000.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Origin of Major Rule 3
In 1958 or 1959, at a time when the United
Steelworkers (a labor organization not involved in this
case) was engaged in organizational activity at the plant,
the Company put into effect a set of Rules and
Regulations governing various aspects of employee
conduct. These included the rule involved in this case. In
recent years the Rules and Regulations have been
classified into three categories: "Minor Offenses," "Major
Offenses" and "Intolerable Offenses." Sanctions for
major offenses were provided for as follows, "Employees
committing a major offense shall be subject to a three-day
layoff. Two violations of a major rule shall constitute an
intolerable offense." An intolerable offense was a ground
for discharge. The third rule among the major offenses
(hereinafter called Major Rule 3) proscribed, "Soliciting
or collecting contributions for any purpose whatsoever, on
company time, without the approval of the management."
B. Past Application of Major Rule 3
Since 1960 the Rules and Regulations have been posted
in printed form on the company bulletin board where they
have been available to employees for inspection. Other
material was also posted on the bulletin board and some
evidence indicates that the rules may at times have been
partially obscured by other material. Other than the
posting on the bulletin board no special effort was made
by the management to acquaint employees with the rules.
New employees were not routinely advised of them at the
time of their hiring. No general distribution of the rules
has ever been made among the employees. Prior to
September 1968 the alleged discriminatees in this case did
not in fact know of the provisions of Major Rule 3, even
though all of the rules were admittedly available for
inspection on the bulletin board.
Before September 1968 Major Rule 3 had been
enforced on only two occasions. The first was in 1960
when the United Steelworkers were organizing among the
175 NLRB No. 163
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Two employees were discharged at that time
for soliciting support on behalf of the Steelworkers
contrary to Major Rule 3. The second occasion occurred
in 1964 when the Chemical Workers Union (also a union
not involved in the present case) was organizing among
the employees. At that time two more employees were
discharged for soliciting support among the employees for
that union in violation of Major Rule 3.'
Toward other types of solicitation the Company took a
permissive attitude. For example a variety of products
were sold in the plant by various employees as a sideline.
These included, among others, Avon Products, Bee-Line
clothing, Sarah Coventry jewelry, tote bags and cosmetic
bags. Items such as first-aid kits and candy were sold by
some employees on behalf of their churches. In addition
collections for gifts or flowers were commonly taken
among employees on the occasion of a fellow worker's
birthday or when one of them was in the hospital. There is
no evidence that permission was either sought or required
for these solicitations.
The sale of Avon Products and Bee-Line clothing
occurred chiefly in the restrooms and waiting room of the
plant, the prospective customers being contacted during
their breaks and before or after worktime. However other
solicitations, particularly those for the sale of first-aid kits
and candy, occurred in work areas and during the
worktime of the employees involved. Sales of these latter
items were made not only to fellow employees but also to
members of management including, among others, the
vice president, the assistant to the vice president, the
production manager, and the personnel manager. There is
no evidence of any disciplinary action being taken because
of any type of solicitation in the plant except those on
behalf of labor organizations.
Thus although Major Rule 3 has technically existed for
about 10 years, its only observable vitality has been at
times when unions were organizing among the employees.
At all other times and as to all other solicitations it
remained dormant. I conclude from this history that
enforcement of Major Rule 3 has intentially been limited
to union solicitations.
C. Suspensions in September 1968 for Violating
Major Rule 3
In August, 1968 UAW organizers began organizing at
the Company by handing out literature, including
authorization cards, to employees in the plant parking lot.
As a result there was some discussion of the Union among
the employees. On September 5, 1968 the Company
suspended employees Juanita McMillan, Gaynelle Bailey
and Emma Meyers for three workdays by handing each
an employee warning notice stating, "You have violated
major rule 3 by soliciting union membership on company
time." On September 25, 1968, employee Shirley Wheeler
was also suspended for three workdays in the same
manner.
McMillan denied she solicited on behalf of the Union
on working time. According to her, she gave out only one
card to one other employee before she had punched in and
after the other employee had ceased work. Bailey denied
doing any soliciting on behalf of the Union. Meyers also
denied soliciting on behalf of the Union, but admitted that
on one occasion when she was griping to other employees
'Until after 1964 the no-solicitation rule was classed among the
intolerable offenses for violation of which employees could be discharged.
More recently it has been classed as a major offense.
about having been denied some piece-rate pay she thought
she was entitled to, she had declared "We sure need a
union in here."
Personnel Manager Michael Rector and assistant to the
vice president Richard Winter both testified they had seen
McMillan, Bailey and Meyers prior to September 5, 1968
talking to other employees in the plant during worktime
although they did not hear what was being said. The
Company contends also that it relied on reports from
various employees who complained about being bothered
by solicitations on behalf of the Union by McMillan,
Bailey or Meyers. No such complaining employees were
called to testify.
Major Rule 3 was invoked to suspend Shirley Wheeler
on September 25, 1968. She admitted handing out union
cards in nonwork areas of the plant on several occasions
on her own time, during breaks or lunch period, or before
or after work. On one occasion she followed another
employee into the parking lot seeking her support for the
Union. Both had finished work and punched out. At the
hearing the Company sought to expand upon its reasons
for disciplinary action by asserting that Wheeler was
abusive to this other employee, calling her a scab.
However, the only reason given to Wheeler on the
employee warning notice handed to her was that "You
have violated Major Rule 3 by soliciting union
membership on company time." Harvey Rector testified
that an employee, whose given name was Ada but whose
surname he could not remember, told him Wheeler was
running around talking to people. Ada was not called to
testify. Rector in his testimony did not specify when,
where or with whom such conversation occurred.
ANALYSIS AND CONCLUDING FINDINGS
1. The wording of Major Rule 3
The General Counsel contends that Major Rule 3 is
invalid on its face because the words banning solicitation
"on company time" are excessively broad . He construes
the words "on company time" to include the total time
during which employees are on the timeclock . This would
include two 10-minute break periods and those lunch
periods which are paid as well as the short time during
which employees go to and from the timeclock and their
work stations . Since during these periods employees are
not working, the General Counsel argues , the rule is
presumptively invalid . He relies on Campbell Soup
Company , 159 NLRB 74, enfd . 380 F .2d 372 (C.A. 5).
The wording of the rule in that case differed slightly from
that here involved . It banned solicitation "during company
working hours." Because of this difference I do not
consider Campbell Soup apposite to the present case.
The construction that the words "on company time"
include all time during which employees are on the clock,
while logical, is not the only reasonable construction. The
words may also be read to mean only time which is not
employee time or which is not at the disposal of
employees . So read they would not cover break periods or
lunch periods . Harvey Rector who authored the rule and
has since been the Company 's labor relations consultant
testified that in Respondent' s plant it did not apply to
employee breaks or lunch periods . Such a reading is also
consistent with the result reached by the Board in
Universal Cigar Corporation , 173 NLRB No. 129. The
rule there involved prohibited solicitation "on company
time ," the precise wording of the rule in the present case.
Although the validity of the rule in Universal Cigar was
ROGERS MFG. CO. 963
not litigated , the Board treated it as a valid rule. And in
Logan Manufacturing Company, 162 NLRB 1586, the
Board found a rule against solicitation "on company
time" to be presumptively valid . Bearing in mind the
Board 's attitude regarding the identical words in these
cases, I conclude that Major Rule 3 is not on its face
presumptively invalid . In so concluding I recognize that
Respondent's application of the rule to Shirley Wheeler
who solicited in the parking lot was not consistent with
this construction.
2. Maintenance and enforcement of Major Rule 3
The record raises some suspicion that Respondent's
motive in establishing Major Rule 3 , quite apart from its
wording , may have been to unlawfully restrict employees
in exercising their Section 7 rights . Thus Harvey Rector
who created the rule testified that in 1958 or 1959 he was
called in to establish policy , train the supervision , and set
up rules , which he did, and that " . . at that time there
had been some organizational activity going on by the
Steel Workers ." At another point in his testimony
regarding its current application he said , " ... that rule .
will cover anything that is being solicitated in that
plant that the Management does not allow to be solicited
in that plant ." And at still another point he said , "As far
as I know , the Steel Workers and the Chemical Workers
and the Auto Workers are the only people who created a
condition for which that rule could be enforced."
The evidence shows that Major Rule 3 was enforced
only on occasions of union organization in 1960 , 1964 and
1968. Other solicitations , such as for the sale of products
for personal profit or on behalf of charitable or religious
organizations , as well as other collections , occurred
frequently . Although some solicitations occurred during
break periods , some were during worktime . Yet over the
years no employee has been reprimanded or disciplined
for violating the rule except for solicitation on behalf of a
union during an organizing campaign . Some of the
above-described solicitations during worktime went
unchallenged even though made directly to supervisors and
company officers , some of whom even purchased some of
the products . Because of this and because of the frequency
of the solicitations that went unchallenged , it is clear that
responsible officials of Respondent knew they existed.
3. The suspension of Juanita McMillan , Gaynelle
Bailey , Emma Meyers, and Shirley Wheeler in
September 1968
All four employees suspended in September 1968
denied they solicited for the Union during worktime.
Although the Company knew of Wheeler's solicitation of
Lovas in the parking lot, no evidence indicates company
knowledge of any union solicitation by McMillan , Bailey
or Meyers during nonworking time. Respondent , however,
offered credible evidence which , while not directly
contradictory of McMillan , Bailey and Meyers, does
related to the reasons why they were disciplined . Michael
Rector and Richard Winter testified that after the union
organizing campaign began, McMillan , Bailey and Meyers
were observed during worktime in work areas of the plant
talking to other employees . These management officials
also testified that several employees , some of whom were
among those to whom McMillan , Bailey and Meyers were
seen talking , reported to the management that the three
were talking about the Union during their worktime.
According to Harvey Rector, the Company on the basis
of this intelligence suspended the three for violating Major
Rule 3 . I find that they were in fact seen by members of
the management talking to other employees in work areas
during worktime. No evidence in the record indicates to
the contrary . I also find that other employees made
reports to management that they were solicited in the
plant during their working time by McMillan , Bailey or
Meyers. Although no such employees were called to
testify as to the truth of the reports , the testimony that
such reports occurred is uncontroverted. I conclude
therefore that Respondent suspended McMillan , Bailey
and Meyers because of the observation of its management
officials that they were talking during worktime , together
with employee reports that they were soliciting for the
Union during worktime . I make no finding as to the truth
of such reports.
The evidence does not reveal any particular business
necessity to enforce Major Rule 3 against union
solicitations while allowing all others . The record holds
only the general observations of Michael Rector and
Winter to the effect that McMillan , Bailey and Meyers
were seen talking to others during worktime away from
their work stations and that this ceased following their
suspension . Nothing indicates specifically that production
was impeded , nor just how their suspected union
solicitations differed from any of the other permitted
solicitations in their impact , if any, on the work process.
Accordingly , I am not persuaded that special
circumstances necessitated disparate enforcement of the
rule in order to maintain production or discipline.
Wheeler testified she solicited union memberships
during lunch hours and breaktimes , and before and after
work , and on one occasion she followed employee
Roseanne Lovas from the plant to the parking lot, during
which they discussed the Union . The Company contended
that Wheeler called Lovas a scab among other things. The
Company 's investigation of Wheeler centered about this
parking lot incident , and although it had a generalized
report she was running around talking to others, I
conclude in view of all the evidence that she was
suspended because of the parking lot incident.
This extension of Major Rule 3 to ban talk about the
Union by Wheeler after work in the parking lot was a
patently unlawful enforcement. Stoddard-Quirk
Manufacturing Co., 138 NLRB 615. Maintenance and
enforcement within the plant to prohibit employees from
soliciting for the Union, even if such soliciting occurred
during working time , was likewise unlawful because the
rule was unfairly applied . The Wm. H. Block Company,
supra; N.L.R.B. v. Lou De Young's Market Basket, Inc.,
406 F .2d 17 (C.A. 6). If any presumption of validity
attaches to the wording of the rule, it is dispelled by the
evidence of disparate enforcement . Being an unwarranted
restriction within the 10(b) period on employee rights to
engage in union activity , such maintenance and
enforcement since March 6, 1968 violated Section 8(a)(1)
of the Act , and the 3 -day suspensions of McMillan,
Bailey , Meyers, and Wheeler for soliciting on behalf of
the Union was discrimination against them to discourage
membership in the Union and thereby violated Section
8(a)(3) of the Act. The Wm . H. Block Company , supra.
Respondent ' s reliance on Major Rule 3 to justify the
suspensions was merely a pretext to disguise the
discrimination . Universal Cigar Corporation, supra.
In its brief Respondent moved to dismiss the complaint
on the ground that the General Counsel had failed to
prove a violation . Inasmuch as I find that the General
Counsel by a preponderance of the evidence has
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established 8(a)(1) and (3) violations , I hereby deny
Respondent ' s motion to dismiss.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of the Respondent found to be unlawful
as set forth in section III, above , occurring in connection
with Respondent 's operations described in section I,
above , have a close , intimate, and substantial relationship
to trade , traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act,
including reimbursement of Juanita McMillan, Gaynelle
Bailey, Emma Meyers and Shirley Wheeler for loss of pay
resulting from their suspensions in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716, and post appropriate
notices.
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. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By conduct set forth in section III, above , which has
been found to constitute unfair labor practices,
Respondent interferred with, restrained , and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, and discriminated against employees
to discourage membership in the Union . Respondent
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
The Rogers Manufacturing Co., its officers, agents,
successors and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any other
labor organization , by suspending or otherwise
discriminating in respect to the hire or tenure of
employees by enforcing a rule against solicitation in a
discriminatory manner.
(b) Maintaining or enforcing a rule against solicitation
as to employees soliciting for a union during
nonworktime.
(c) Maintaining or enforcing in a discriminatory
manner a rule against solicitation as to employees
soliciting for a union during worktime.
(d) In any other manner interfering with, restraining or
coercing its employees in the exercise of the right to
self-organization , to form labor organizations , to join or
assist a 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 protection , or to refrain
from any or all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make Juanita McMillan, Gaynelle Bailey, Emma
Meyers, and Shirley Wheeler whole for the pay losses
sustained by their three-day suspensions in September
1968, in the manner indicated in "The Remedy" section
of the Trial Examiner's Decision.
(b) Upon request, make available to the Board and its
agents for examination and copying all payroll and other
records containing information concerning Respondent's
backpay obligation hereunder.
(c) Post at its plant in Akron , Ohio, copies of the
attached notice marked "Appendix ."2 Copies of said
notice , on forms to be furnished by the Regional Director
for Region 8, after being signed by the Respondent's
authorized representatives , shall be posted immediately
upon receipt thereof, and maintained by Respondent for
60 consecutive days thereafter in conspicuous places,
including all places where notices to employees 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.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Decision , what steps
Respondent has taken to comply herewith.'
Insofar as the complaint alleges unfair labor practices
not specifically found herein , it is dismissed.
'If this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner" in the notice . If the Board 's Order is enforced
by a decree of a United States Court of Appeals , the notice shall be
further amended by the substitution of the words "a Decree of the United
States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order."
'If this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director in writing within
10 days from the date of this Order what steps the Respondent has taken
to comply herewith " Because the discriminatees named in subparagraph
(a) of paragraph 2 hereof would not normally be eligible for military
service and all but one are currently employed by Respondent , a provision
requiring notification in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948 , as amended, is not
included herein or in the attached notice.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT maintain or enforce a rule against
solicitation as to employees soliciting for a union during
nonworktime.
WE WILL NOT in a discriminatory manner maintain
or enforce a rule against solicitation as to employees
soliciting for a union during worktime.
WE WILL NOT discourage membership by our
employees in International Union, United Automobile,
ROGERS MFG. CO. 965
Aerospace and Agricultural Implement Workers of
America , UAW, or any other labor organization, by
suspending them or in any other manner discriminating
in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations , to join International Union , United
Automobile , Aerospace and Agricultural Implement
Workers of America , UAW, or any other labor
organization , to bargain collectively through
representatives of their own choosing , or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL make Juanita McMillan , Gaynelle Bailey,
Emma Meyers and Shirley Wheeler whole for any loss
of earnings they have suffered by reason of our
discrimination against them.
Dated By
THE ROGERS
MANUFACTURING CO.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office , 1695 Federal
Office Building , 1240 E . 9th Street , Cleveland, Ohio
44199 , Telephone 216-522-3738.