The Seng Co.

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 936 (N.L.R.B. 1974)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Seng Company and Furniture and Bedding
Workers Local 18B, United Furniture Workers of
America , AFL-CIO. Case 9-CA-6989
May 28, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 26, 1973, Administrative Law Judge
Joseph I. Nachman issued the attached Supplemen-
tal DecisionI in this proceeding. Thereafter Respon-
dent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge only to the extent consistent
herewith.
The Administrative Law Judge found, correctly in
our view, that Respondent's no-solicitation, no-dis-
tribution rule was valid on its face.2 But he also
found that Respondent discriminatorily enforced the
rule against union adherents and that the reprimands
issued to employees Hatcher, Logsden, and Mat-
thews therefore violated Section 8(a)(1) and that the
discharge of Matthews, because he breached the rule
a second time, violated Section 8(a)(3) of the Act. We
do not agree.
In finding Respondent disparately enforced its no-
solicitation rule the Administrative Law Judge relied
on five incidents, and particularly the Powell
incident. These were:
1. In January 1972, employee Elmore, after
requesting advice from Plant Manager Glutting,
prepared a letter of resignation from the Union for
the Respondent and, just prior to the end of his shift,
delivered a copy to Chief Steward Downs mile the
latter was at work. On April 26 Downs reported this
incident to Glutting who promised to investigate the
matter . Glutting spoke to Elmore, Cain, who had
accompanied Elmore when he handed the letter to
i In his original decision herein the Administrative Law Judge found it
unnecessary to consider the complaint on the merits because he considered
the issues more appropriately left to the grievance and arbitration
procedures contained in the parties' contract . On August 2, 1973, the Board
issued its Decision (The Seng Company, 205 NLRB No 36) in which it
found deferral was not warranted and remanded the case to the
Administrative Law Judge for a supplemental decision on the merits
2 The rule states
Downs, and Downs; he then concluded Elmore had
not violated the Respondent's rule.
2. On April 25, 1972, employee Matthews, Union
Steward Leroy Logsden, and several other employ-
ees, during the course of the day, observed employee
Powell, through the window of Powell's inspector's
office, making nonunion buttons. Leroy Logsden,
credited by the Administrative Law Judge, testified
that when he saw Powell there were two buttons
completed and Powell was lettering a third and that
he observed Powell wearing such a button. Downs
complained of Powell's activity to Glutting. At
Glutting 's request , Powell's supervisor investigated
and reported back. According to the Administrative
Law Judge, Glutting concluded that while Powell did
make the buttons in the plant he did not violate the
rule even though Powell made them during working
time.
3. On December 16, 1972, Glutting gave employ-
ee Hatcher permission to solicit the entire plant on
behalf of a terminated employee whose family was in
need of financial assistance . The solicitation was
made during working hours.
4. Before Christmas, 1971, employees were solicit-
ed for funds to buy a Christmas gift for their
supervisor.
5. Although the record is not clear, it seems that
all employees were solicited for funds to purchase
flowers for the funeral of the deceased mother of the
plant nurse.
In our opinion , and our dissenting colleague
agrees, the beneficent collections for the terminated
employee, for flowers, and for the supervisor were
too isolated to establish disparate application of the
Respondent's lawful rule. We further note that there
is no evidence that these isolated solicitations
interfered with production.3 Contrary to the sugges-
tion of our dissenting colleague, we do not under-
stand Daylin, Inc., Discount Division d/b/a Miller's
Discount Dept. Stores, 198 NLRB No. 40, to require a
contrary result. In Daylin a majority of the Board
found that the no-solicitation rule was unlawfully
broad on its face,4 which is not the case here. In this
case the rule is valid, and therefore we have only to
decide, as we have, whether the beneficent solicita-
tions are too isolated to warrant a finding of
discriminatory application of the rule.
We do not agree with the Administrative Law
An employee shall not engage in solicitation of any sort during working
time nor distribute literature in working areas at any time; nor shall
anyone make collections or sales or possess items foi sale on company
property without permission.
3 See Atkins Pickle Company, Inc, 181 NLRB 935, Emerson Electric Co,
U S Electrical Motors Division, 187 NLRB 294.
4 Member Kennedy dissented on this point, and therefore would not
consider Dayhn applicable here in any event
210 NLRB No. 129
THE SENG COMPANY 937
Judge that the Powell incident constitutes disparate
application of the rule. Glutting testified on both
direct and cross-examination that he concluded that
Powell had not violated the rule after receiving the
report on the matter he had requested from Czeplicki,
Powell's immediate supervisor, that, while Powell
had some buttons in the office, he was neither
making nor distributing the buttons on working time.
Thus, the record does not support the Administrative
Law Judge's implication that Glutting knew that
Powell made the buttons during working time. It is
true that Glutting also testified that he thought such
conduct was not solicitation in any event. But
whether that opinion is right or wrong has no bearing
here, because, to Glutting's knowledge, the alleged
violation had not transpired in fact.
Finally, we do not regard the fact that Elmore gave
Steward Davis a copy of his resignation from the
Union during Davis' working hours as grounds for
finding disparate treatment.5 When Elmore handed
Downs the resignation his (Elmore's) shift was
ending. Downs was still on duty, a fact which the
Administrative Law Judge deems significant. How-
ever, nothing was said; Elmore simply handed
Downs the resignation and continued on his way. We
agree with the Respondent that there was no
solicitation whether on or off working time. We note
that the contract between Respondent and the Union
provides that the Union be supplied with a copy of
such a resignation. There is no evidence or even
claim that receipt of such documents was not a
normal function of the chief steward.
In conclusion, for the reasons set forth above, we
find Respondent did not engage in disparate applica-
tion of the no-solicitation rule. Accordingly, we shall
dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
5 Our dissenting colleague points out that Elmore prepared his
resignation in Glutting's office after asking Glutting how to withdraw from
the Union Our colleague does not suggest it was unlawful to allow Elmore
to seek advice from Glutting Therefore, it seems tenuous to suggest that
Elmore 's preparation of such a bnef document in the office amounts to
violation of a no-solicitation rule
6 Plant Manager Glutting testified Supervisor Czeplicki conducted the
Powell investigation , Czeplicki did not testify Sanders , on the other hand,
was a witness and testified he investigated the Powell incident.
7 In this connection see Atkins Pickle Company, Inc, 181 N LRB 935, and
Emerson Electric Co, 187 NLRB 294, in which I participated . Those cases
involved limited and isolated instances of beneficent collections . It should
be noted, however, contrary to the Administrative Law Judge's implication
(see In . 15), that the Board has not held that allowing collections for
beneficient causes does not establish disparate application of an otherwise
lawful rule The Board's position in this matter was set forth in Serv-A,r,
Inc., 175 NLRB 801, upon remand from the Tenth Circuit Court of
Appeals, 395 F.2d 282. There the Board accepted the court 's holding that
two or three collections for beneficient purposes "fall far short of
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
I would adopt the Administrative Law Judge's
finding that Respondent discriminatorily enforced its
no-solicitation rule against union adherents. My
colleagues, in finding that the no-solicitation rule was
not discriminatorily enforced, choose to view the five
instances involved as separate and unrelated. Such a
viewpoint is myopic; the Respondent's conduct must
be viewed as a whole. When so viewed it becomes
clear that Respondent has employed a double
standard-one standard for union adherents and one
for those who opposed the Union. Thus, even the
manner in which Respondent treated the complaints
of the opposing factions indicates its proclivity to
discriminate against the union adherents. For exam-
ple, when complaints were lodged against Hatcher
and Miller for soliciting for the Union, no investiga-
tion was conducted by Respondent although Hatch-
er and Miller denied they engaged in such activity.
On the other hand, although three employees
complained that Powell had made antiunion buttons
on worktime, Supervisor Sanders, who testified he
made an investigation of the Powell incident, stated
that Powell denied he had made the buttons on
worktime and that he (Sanders) "had no reason to
doubt his word." 6
Faced only with the three beneficent collections, I
might agree that allowing such collections would not
amount to disparate application of the rule in
question.? But these incidents do not stand alone and
therefore must be considered in the context of
Respondent's overall conduct and not as separate
incidents. The majority takes issue with my citation
of Daylin, Inc., Discount Division d/b/a Miller's
Discount Dept. Stores, 198 NLRB No. 40, on the
ground that in Daylin the Board majority found the
no-solicitation rule unlawfully broad on its face,
whereas here we have a presumptively valid rule.8 It
establishing forbidden discrimination " However, the Board in In 3 further
noted, "we do not understand the court of appeals' decision as meaning that
a finding of discriminatory application would not be justified even if
numerous solicitations for vanous and sundry social and charitable
purposes were allowed , but only as concluding that disparate treatment was
not established by the quantum of such incidents shown by the record
before it "
s The Administrative Law Judge found the no-solicitation rule presump-
tively valid on its face . I will accept that judgment primarily because the
General Counsel did not file exceptions . However , I must confess serious
doubt as to this finding Under the rule all solicitation is prohibited while
collections are prohibited only if permission is not requested or, upon
request, is not granted As a result union solicitation is prohibited
outright-permission cannot be granted-but collections or money solicita-
tions which may also disrupt production are allowable if the solicitor
receives permission beforehand Such a rule , if not presumptively invalid on
its face , at least ensures discriminatory application , as union solicitation is
banned without any recourse to seeking permission In this connection
(Contiwaed)
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be noted, however, that in Daylin the
Administrative Law Judge not only found the rule
involved was too broad but also that the respondent
had discriminatorily applied the rule by allowing a
number of solicitations for beneficent and social
purposes. And although the Board majority in Daylin
did find the rule overly broad, it also specifically
addressed itself to the Administrative Law Judge's
finding that the respondent had discriminatorily
applied the rule and held "and discriminatory
application of the rule seems clear; the rule itself
prohibited all solicitation, expressly including chari-
table and social, yet was ignored by Respondent as
to several other solicitations and applied only in the
case of union solicitation." 9 In my opinion, the
majority cannot ignore the overall effect of the
manner in which Respondent applied its rule by
describing the instances of beneficent solicitation as
isolated and de minimis since Respondent's failure to
apply the rule to such solicitations in the context of
this case clearly supports the conclusion the rule was
applied only against union activity.
The real issue, and the one which the majority
ignores , is whether the Respondent can prohibit
union activity while allowing antiunion activity. The
Board has consistently held, as most recently
indicated in Daylin, Inc., supra, that employees have
the right to solicit, even during working time, so long
as there is no interference with production. For this
reason , an otherwise valid no-solicitation rule is valid
(or permissible) only because it is presumed to be
directed toward and have the effect of preventing
interference with production.10 If, however, after
claiming the necessity of such a rule to prevent
interference with production an employer permits or
condones other solicitation or antiunion activity, as
here, during working time, it negates any reliance
upon these factors as special interests in need of
protection. Put differently, an employer cannot rely
on the protection of such a rule if it uses the rule only
to prohibit union activity while allowing interference
Gooch Packing, 187 NLRB 351, is distinguishable, since there all
solicitations or collections were subject to prior authorization
9 See also Gooch Packing, Inc, supra, Hosiery Corporation of America, 175
NLRB 180, and Talon Inc, 170 NLRB 355
io Thus, in numerous cases , even where a rule was presumptively valid
on its face , the Board has held that the respondent must show there is some
basis for prohibiting certain employee conduct , srch as the fact that the
conduct was having some disturbing effects on its operations or production.
See Whitcraft Houseboat Division, North American Rockwell, 195 NLRB
1046; Hosiery Corporation of America, supra, Universal Cigar Corporation,
173 NLRB 865; and General Electric Company, 169 NLRB 1101.
t1 In this connection, no evidence was adduced by Respondent to show
that the alleged solicitation by union adherents actually interfered with
production See Montgomery Ward & Co., Incorporated, 202 NLRB No. 124.
12 Powell was observed by Matthews, Steward Logsden, and several
other employees at different times during the workday making the nonunion
badges . Logsden testified that Powell as an inspector had some flexibility as
to when he took his breaks and was not required to take his breaks at the
regularly scheduled breaktimes However, Logsden further testified Powell
with production for other solicitations and other
nonunion activity.ii To do so is to engage in
discriminatory application of its rule in violation of
Section 8(a)(1).
Starting from the premises that an employer has no
right to promulgate a rule solely for the purpose of
prohibiting union activity while allowing interference
with production for other solicitation or antiunion
activity, and that the employer's treatment of union
advocates must be viewed in its totality, it appears
clear to me that Respondent disparately enforced its
rule. It is incongruous to find that a no-solicitation
rule was not discriminatorily applied when one union
adherent is terminated and two others receive
reprimands on the same day that an antiunion
employee is permitted to make antiunion badges on
his worktime. The Administrative Law Judge found
that Powell did make the badges on worktime.12 The
majority suggests, however, that whether or not
Powell made the badges on worktime is of no
consequence since Plant Manager Glutting was
acting on the information he received, which was to
the effect that Powell had not made the badges on
worktime, and therefore to Glutting's knowledge the
alleged violation had not occurred in fact. They find
that the record does not support the Administrative
Law Judge's finding that Glutting decided that
Powell did not violate the rule "even though Powell
made the buttons during working time" because on
both direct and cross-examination Glutting testified
he concluded Powell had not violated the rule
because Czeplicki, Powell's immediate supervisor,
told him, after talking to Powell, that while Powell
had some buttons in the office he was neither making
nor distributing them on worktime.13 They note,
however, that upon a further questioning on cross-
examination, Glutting added that he thought such
conduct was not solicitation in any event,14 but they
conclude that this was only an opinion which
whether right or wrong has no bearing here. I submit
this conclusion totally ignores the record evidence.
always took his breaks with the other employees and did so on that
particular night. Powell, on the other hand , admitted he made nonunion
buttons but claimed he always did so either at home or, if in the plant, on
break or lunch periods . With regard to the incident in question , Powell
testified he made only one sign but claims it read, "no outside calls " The
Administrative Law Judge did not credit Powell to the extent his testimony
conflicted with Matthews , Logsden, and the other employees who saw
Powell making the badges
13 See discussion , supra (and fn. 6), of Respondent 's proclivity to
discriminate against union adherents by the very manner in which it
handled such investigations As noted Czeplicki did not testify
i4 If the majority suggests in accordance with Glutting's "opinion" that
making antiunion badges on working time is not solicitation , they beg the
question For the only valid purpose for such a no-solicitation rule is to
prohibit interference with production in this connection , see J W Morrell
Company, 168 NLRB 435, where the Board found a no-solicitation rule was
disparately enforced because , among other things , the respondent enforced
its rule against union adherents while allowing employees to prepare
antiunion documents on worktime
THE SENG COMPANY 939
For, in addition to the testimony relied on by my
colleagues , Glutting also testified on direct as
follows:
Q. If he had made any buttons during
working time, is there any shop rule, any specific
shop rules that this would be violating?
THE WITNESS: . . . yes, I did know that he was
making buttons and had made buttons, yes. Now
I do not consider that a violation of the shop rule
Number 1, no I do not.
JUDGE NACHMAN: Would it make any differ-
ence as to where he made them any difference in
the violation or not?
A. In my estimation sir, it does not.
Q. Even if he made them right there in the
plant during working hours?
A. Yes sir.
Q. That would not be a violation of the shop
rule?
A. No sir.
And on cross-examination, after being asked if he
had received the complaints of the union adherents
about Powell making antiunion buttons on work-
time, he testified:
Q. So you take from that fact that there had
been a report made by Logsden and Mr. Scott,
but there was no basis for the fact that Powell was
making buttons?
A. Well, to me it was not just that complicat-
ed. To me it was just very simple, whether he was
making the buttons or not didn't really make a
damn bit of difference to me.
Q. In your view that didn't violate the rule.
A. That did not violate the rule. I always felt
that solicitation takes two people.
On the basis of this testimony it is, therefore, clear,
as found by the Administrative Law Judge, that
Glutting decided that Powell did not violate the rule
"even though Powell made the buttons during
worktime." It is also clear that Glutting was
interested in prohibiting interference with production
only when union adherents were involved.
Likewise I believe that Elmore's act of resigning
from the Union on working time is further evidence
that Respondent was concerned with interference
with production only to the extent engaged in by
union adherents. I do not suggest, as my colleagues
point out, that it was unlawful to allow Elmore to
seek advice from Glutting but only that this incident
further evidences Respondent's discriminatory treat-
ment of union adherents. Elmore went to Glutting's
office during worktime to inquire about resigning
from the Union. Glutting not only told him what he
had to do but allowed Elmore to prepare his letter of
resignation in that office. After Elmore prepared the
letter, Glutting told him to give a copy to Chief
Steward Downs. Elmore took the copy tq Downs
while both he and Downs were on worktime. My
colleagues, in dismissing this incident as insignifi-
cant, point out that nothing was said when Elmore
gave Downs his resignation and that in any event the
incident did not involve solicitation.15 As with the
Powell incident, we have a situation where Respon-
dent promulgated and enforced a no-solicitation rule
against union adherents, presumably to prevent
interference with production, but allowed an antiun-
ion employee to cease his production so it could
inform him how to withdraw from the Union and
allow him to prepare and deliver his resignation on
working time. This is disparate or discriminatory
treatment of union adherents and I would find, in
agreement with the Administrative Law Judge, that
Respondent applied its no-solicitation rule in a
discriminatory manner. If the Respondent were
really concerned with interference with production,
why could Glutting not have told Elmore to return to
his office after his shift ended? On this record, if a
union adherent had passed a union authorization
card, without saying a word, to another employee,
would Respondent have declined to apply the no-
solicitation rule? I think not.
I would find for all the reasons set forth above that
the Respondent discriminatorily applied its no-solici-
tation rule against union adherents in violation of
Section 8(a)(1) and, with respect to Matthews, of
Section 8(a)(3).
15 My colleagues also point out that there is no evidence or claim that
receiving such resignations during working time was not the normal
function of the union steward. Yet, on the other hand, there was no
evidence that it was a normal function of the union steward Apparently,
Downs did not consider it a part of his function since he complained to
Glutting about it.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This
case was heard by me at Leitchfield, Kentucky, on
December 6 and 7, 1972, and on January 18, 1973, I issued
my Decision recommending that the Board defer the
dispute here involved to the grievance and arbitration
provisions of the collective-bargaining agreement in effect
between The Seng Company and the Charging Union. By
its Decision and Order issued August 2, 1973 (205 NLRB
No. 36), the Board disagreed with my recommendation
and remanded the case to me for the preparation of a
Supplemental Decision on the merits containing appropri-
ate findings of fact, conclusions of law, and recommended
Order.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT'
Background
Early in 1970, Respondent opened its Leitchfield,
Kentucky, plant (the only plant involved in this proceed-
ing) for operation. With the opening of this plant, there
was posted on the bulletin board a set of plant rules
governing the conduct of employees while on plant
premises, which has remained posted at all times since.
Involved in this proceeding is rule 12, which reads:
An employee shall not engage in solicitation of any sort
during working time nor distribute literature in working
areas at any time; nor shall anyone make collections or
sales or possess items for sale on company property
without permission.
The penalty provided in the rules for violation of this
provision was a warning for a first offense, and discharge
for a second offense.
Late in 1970 or early in 1971, after a Board-conducted
election, the Union was certified as the collective-bargain-
ing representative of Respondent's employees in an
appropriate unit. Although bargaining for a contract
commenced shortly after the certification, agreement was
not reached until September 17, 1971, when a contract was
entered into for a term of 1 year from that date. The
contract brought to an end a strike and picketing which
had been in progress for sometime, with some employees
honoring the picket line, with others continuing to work.2
In late August 1972, pursuant to a decertification petition,
the Board conducted a further election among the
employees in the unit involved, which election the Union
lost, and hence was decertified, but the parties continued
to administer the contract they had entered into until its
expiration on September 17, 1972.
The Unfair Labor Practices Alleged
On April 4,3 Respondent issued written reprimands to
employees Wade Hatcher, David Miller, and Farley
Logsden for violating rule 12 by soliciting for the Union
while working. A copy of the reprimand was placed in the
personnel file of each of said employees. On April 25,
employee Ed Matthews was reprimanded for the same
reason, but as he had been reprimanded in December 1971,
for the same offenses, he was discharged.4 Except in the
case of Farley Logsden, who admitted that he had solicited
1 As stated in my initial Decision, no jurisdictional issue „ involved.
2 The intense feeling between the prounion and antiunion employees was
plainly apparent at the trial The spectator section of the courtroom was an
area about 30 by 40 feet with an aisle about t feet wide on each side,
another about the same width in the center. The prounion employees all sat
on one side of the center aisle, and the antiunion employees sat on the c,ther
side of the center aisle, and to paraphrase Kipling, never did the twain meet.
3 This and all dates hereafter mentioned are 1972, unless otherwise
stated
4 The evidence shows that on December 4, 1971, Matthews received a
reprimand for soliciting a fellow employee, while at work, to sign a union
card. The complaint herein alleges this to be a violation
5 Thus, Wade Hatcher testified that although he did solicit in the parking
lot and while on breaks, he never solicited in the plant, but employees
Mattingly and Smith, witnesses called by Respondent, testified that they
were severally solicited by Miller to join the Union. Edward Matthews
while at work, the evidence is in serious conflict as to
whether the employee involved did in fact violate rule 12.
However, because the case can be disposed of on other
grounds, I find it unnecessary to resolve the conflicts.5
The General Counsel's basic contention is that, assuming
the validity of rule 12, it was enforced by Respondent in a
disparate manner. The evidence dealing with disparate
enforcement is as follows:
1. The contract between Respondent and the Union
contains a modified union-security and checkoff provision,
with the right to any employee to terminate the checkoff by
notice to the Company and the Union. Sometime in
January, employee Rodgers Elmore decided to terminate
his dues-checkoff authorization, and discussed the matter
with Plant Manager Glutting, who informed Elmore that it
would be necessary for Elmore to prepare a letter of
resignation from the Union which he would give to the
Company, with a copy to General Union Steward Odell
Downs. Elmore prepared the necessary letter in Glutting's
office, and shortly before the end of his shift at 3 p.m.,
delivered the copy to Steward Downs while the latter was
at work.6 Downs testified without contradiction that
sometime in April he reported to Glutting that Elmore
gave him the withdrawal while he (Downs) was at work,
and that Glutting "just laughed." Downs further testified
that as chief steward he was supposed to receive a copy of
all reprimands issued to employees for violation of plant
rules; that he never received one involving Elmore; and
that, although he received copies of a number of employee
reprimands issued from time to time, these always involved
employees who supported the Union, never employees who
opposed the Union.
Glutting admitted that, at a time he fixed as April 26,
Downs, who was then accompanied by Union Agent Scott,
raised with him, among other things, the conduct of
Elmore in handing him the copy of the letter resigning
from the Union, and that he promised to investigate that
matter. According to Glutting, he later talked separately
with Elmore, and with Cain,7 as well as Downs, all three of
whom agreed as to what had happened, and that, on the
basis of the facts so reported to him, he concluded that
Elmore's conduct did not violate rule 12. His reasons for so
concluding Glutting did not state.
2. On April 25, the day Matthews was discharged, the
latter went to the water fountain located near a window
likewise denied that he at anytime solicited in the plant , but employees
Lyons and Saltzman, witnesses called by Respondent , testified to occasions
in December 1971 and April 1972, while they were at work, on which they
were solicited by Matthews to join the Union . As above stated, employee
Farley Logsden admitted that he solicited for the Union while at work.
6 According to Elmore's uncontradicted testimony, his shift ends at 3
p in and he closes down his machine about 7 minutes before the end of the
shift to permit him to wash up before clocking out, and he estimates that he
gave the copy of the letter to Downs about 3 or 4 minutes before 3. Downs
claimed that he was handed the letter about 10 minutes before 3, but I deem
it unnecessary to resolve this conflict The uncontradicted and credited
testimony of Downs is that his shift does not end until 3.30 p.m, and that
he was at work when Elmore handed him the letter of resignation from the
Union.
7 Cain had accompanied Elmore when the latter delivered the letter to
Downs.
THE SENG COMPANY 941
looking into the inspector's office, and there observed
Royce Powell8 making nonunion buttons. Matthews
reported this to Steward Leroy Logsden. During the course
of the day, Steward Logsden and several other employees
went to the window of the inspector's office to observe
Powell's activity. These employees testified that through
the window they observed Powell preparing buttons on
pieces of cardboard about 3 inches in diameter on which
he wrote the legend "Non-union." Leroy Logsden credibly
testified that when he observed Powell there were two
completed buttons on the table, and he was lettering the
third one; and that later during the shift he saw Powell
wearing the same or a similar button in the plant .9 Powell
admitted that he wore such a button in the plant, and that
he gave buttons of this kind to other employees in the plant
when they asked him for them. Glutting testified that at the
meeting with Union Agent Scott and Steward Downs, on
April 26, the latter brought up the subject of Powell's
making nonunion buttons in the plant the preceding day,
and that he promised to investigate the matter. According
to Glutting, because Powell worked on a different shift he
asked the latter's supervisor to get the facts for him, and
that, on the basis of the supervisor's report, he concluded
that while Powell did make antiunion buttons in the plant,
what he did was not a violation of the rule, and that this
was true even though Powell made the buttons during
working time. The basis for this conclusion Glutting did
not explicate.
3. On December 16, 1972, employee Ben Goins, who
had been a union steward in the plant, was terminated ' 10
Because a number of employees in the plant regarded the
Goins family as in dire need of financial assistance, they
decided to take up a collection to be contributed to the
family. The collection was made by employee Wade
Hatcher by circulating among all employees in the plant
while they were at work, and taking such contributions as
the particular employee offered. Before taking up the
collection Hatcher discussed the proposed collection with
his supervisor who, after checking with Plant Manager
Glutting, gave Hatcher permission to solicit the entire
plant.11
4. Before Christmas 1971, certain employees decided to
take up a collection to buy Supervisor Rich a Christmas
gift. The employees involved12 were solicited for that
purpose, and the gift was purchased and presented to the
supervisor.13
5. The evidence additionally shows that in late 1971 the
employees were solicited for a contribution to a fund to
purchase flowers for the funeral of the deceased mother of
the plant nurse. Although the record is not entirely clear,
s Powell was at the time employed as a precision inspector , a rank-and-
file job, but about October 1972 became a supervisor in one of the
departments of the plant
9 Based on the credited testimony of Matthews , Leroy Logsden, and
Allen Lambert and the admission of Powell . Powell admitted that he made
nonunion buttons , but claimed that he always did so either at home , or, if he
did so at the plant, it was during his lunch or break periods According to
Powell, on the occasion involved he made only one sign He admitted that
the sign was about 3 inches in diameter, but claims that the legend on it read
"No outside calls " Why it was necessary to make such a sign Powell did not
explain To the extent that his testimony conflicts with that of Matthews,
Leroy Logsden, and Lambert, f do not credit it
apparently all employees in the plant were solicited for this
purpose.14
Glutting admitted that he was aware of the solicitation
made in the plant for the benefit of Goins, and that he gave
permission for it. He testified that, while such solicitation
was contrary to the language of the rule, no violation
thereof occurred because he had given his permission for
the solicitation. Glutting additionally admitted that he had
permitted other collections, such as gifts for a foreman at
Christmas, and for flowers at the time of a bereavement.
With respect to these incidents, he conceded that such
collections violated the rule absent his permission, but
claimed that no violation then occurred because he had
given his permission.
Discussions and Conclusions
The General Counsel's contention that Respondent's
conduct in reprimanding Hatcher, Miller, Logsden, and
Matthews, and subsequently discharging Matthews, violat-
ed Section 8(axl) and (3) of the Act is premised on two
alternative theories: (1) that the "no-solicitation" rule here
involved is overly broad and hence violative of Section
8(a)(1) of the Act; and (2) that, even if the rule is valid on
its face, on the facts of this case Respondent enforced it
only against union adherents while permitting other
nonunion activity and solicitation.
Turning first to the contention that the rule is invalid on
its face, the General Counsel' s argument seems to be based
on the language of the last clause in the rule which seems
to reserve to Respondent the right to permit employees to
engage in conduct which, absent such permission, is
prohibited, and from this fact concludes that the rule must
have been intended to infringe upon employee rights, and
not to maintain production. I find and conclude that this
theory must be rejected.
It is well settled that a rule barring solicitation in work
areas of the plant during working time is presumptively
valid. Republic Aviation Corp. v. N.LR.B., 324 U.S. 793,
803, fn. 10 (1945). The fact that the rule adds that such
conduct shall not be engaged in without the employers
permission in no way affects the validity of the rule. Nor
can it be argued under the evidence in this case that the
phrase "working time" was ambiguous to the employees
because it could possibly be construed by them as
embracing all hours they were at the plant, and as
prohibiting such conduct during their lunch and break
periods. Plant Manager Glutting testified-and the em-
ployees corroborated his testimony in that regard-that he
conducted meetings with employees and told them that the
rule applied only to those periods they were actually at
10 The reason for Goins' termination is not discloses by the record, nor
is it an issue in this case The record does show that following arbitration
Goins was reinstated to his job about April 6
11 Based on the credited testimony of Wade Hatcher , and the admissions
of Plant Manager Glutting
12 The record does not disclose whether this collection was plantwide or
limited to a particular department
i3 Based on the credited testimony in this respect of Ben Goins and
Rodger Mattingly, and the admissions of Plant Manager Glutting
14 Based on the credited testimony of Goins, and the admissions of Plant
Manager Glutting
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work , and that during lunch and break periods , even if
compensated for, they were free to solicit . This sufficiently
clarified any possible ambiguity . Accordingly , I find and
conclude, contrary to the General Counsel's contention,
that the rule here involved is valid on its face . Notwith-
standing this conclusion , the law is equally well settled that
an employer violates Sectio si 8(a)(1) of the Act if he
enforces an otherwise valid rule in a disparate or
discriminatory manner . Republic Aviation Corp. v.
N.LR.B., supra at 805 ; J. W. Mortell Co., 168 NLRB 435,
enfd . in pertinent part 440 F .2d 455 (C.A. 7, 1971).
Upon consideration of the totality of the five incidents
set forth above , and particularly the incident of Powell
making nonunion buttons during his working time, and
thereafter distributing them in the plant , conduct which
was brought to the attention of supervision , and which
Glutting admitted he did not view as a violation of the rule,
and the three incidents of solicitation of funds while the
employees were actually engaged in work, conduct which
Glutting admitted was contrary to the rule, but not a
violation thereof because he had given prior approval for
the solicitation , I find and conclude that Respondent
discriminatorily enforced its rule against union adherents,
and that the reprimands issued to Hatcher , Miller,
Logsden , and Matthews violated Section 8(a)(1) of the Act,
and that its discharge of Matthews , allegedly because he
violated the rule for a second time , violated Section 8(a)(3)
and (1) of the Act. Firestone Textile Company, Division of
Firestone Tire & Rubber Company, 203 NLRB No. 19, and
the cases there cited.15
Upon the foregoing findings of fact , and the entire
record in the case , I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and 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 disparately enforcing its rule prohibiting solicita-
tion Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in, and is
engaging in, unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. By reprimanding Wade Hatcher, David Miller,
Farley Logsden, and Ed Matthews, and by subsequently
discharging Ed Matthews, all for allegedly violating its
disparately enforced "no solicitation" rule, Respondent
discriminated against said employees in regard to their hire
and tenure of employment, and interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed them by Section 7 of the Act, and thereby
engaged in, and is engaging in, unfair labor practices
proscribed by Section 8(a)(3) and (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices proscribed by the Act, it
will be recommended that it be required to cease and desist
therefrom , and to take the affirmative action set forth
below , designed and found necessary to effectuate the
policies of the Act.
Having found that Respondent interfered with, re-
strained , and coerced its employees in the exercise of their
Section 7 rights ; discriminatorily reprimanded Hatcher,
Miller , Logsden, and Matthews ; and thereafter discrimina-
torily discharged Matthews , I conclude from the totality of
this conduct that Respondent should be required to cease
and desist from in any manner interfering with , restraining,
and coercing its employees in the exercise of their Section 7
rights. N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532 (C.A.
4, 1941); California Lingerie, Inc., 129 NLRB 912, 915.
To remedy the discrimination against Hatcher , Miller,
Logsden, and Matthews , it will be recommended that
Respondent be required to remove from its files and
destroy all references to the fact that they or any of them
has been reprimanded for violating rule 12 , and that it
offer to Ed Matthews immediate , full, and unconditional
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority or other rights , privileges , or working
conditions , and make him whole for any loss of earnings he
suffered by reason of the discrimination against him by
paying to him a sum of money equal to the amount he
would have earned from the date of his discharge to the
date of Respondent 's offer of reinstatement , less any
amount he may have earned as wages during said period;
such backpay to be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289, with interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB 716. It
will be further recommended that Respondent be required
to preserve and, upon request, make available to the
authorized agents of the Board all records necessary or
useful in determining compliance with the Board 's Order,
or in computing the amount of backpay due.
[Recommended Order omitted from publication.]
15 I am not unmindful of the Board's holding in Serv-Air, Inc, 175 an otherwise lawful rule, but I do not consider those cases applicable here
NLRB 801, Atkins Pickle Company, Inc, 181 NLRB 935, and Emerson because the activity there was not union-related as was some of the conduct
Electric Co, l87 NLRB 294, to the effect that permitting solicitation during in the instant case and I know of no standard that I might apply to support
worktime for beneficent causes does not establish disparate enforcement of a conclusion that the antiunion conduct here involved was de mintmis