The Wm. H. Block Co.

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 341 (N.L.R.B. 1964)

THE WM. H. BLOCK COMPANY 341
2. Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent Union has not engaged in any unfair labor practices as alleged
in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
The Wm. H. Block Company and Local 512, Retail , Wholesale
and Department Store Union , AFL-CIO. Case No. 25-CA-
1738. December 16, 1964
DECISION AND ORDER
On February 7, 1964, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged in certain other
unfair labor practices and recommended dismissal of the complaint
with respect thereto. Thereafter, the Respondent filed exceptions to
the Decision and a brief in support thereof, and the General Counsel
filed a brief in support of the Decision.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations 1 of the Trial Examiner.
The Trial Examiner concluded that (1) even if the Employer's
rule against union solicitation by employees during working time was
presumptively valid, this presumption is rebuttable; (2) the elements
present, including the fact that the Respondent took no action to
prohibit other types of solicitations but immediately prohibited oral
solicitations on behalf of the Union, showed that the rule was directed
against union organization and not to the protection of the proper
use of working time; and (3) because its adoption was motivated by
antiunion consideration the presumption was rebutted and the rule
was invalid. The Respondent contends that neither motive nor dis-
parate enforcement is material, because under the Supreme Court's
1 The Trial Examiner ' s Recommended Order and the Appendix are modified so as to
conform to the allegations of the complaint The General Counsel 's theory of the case,
as indicated by the complaint , was that only the oral rule against union solicitation,
allegedly promulgated on or about March 29, 1963, and limited to the Respondent 's serv-
ice building, was invalid.
150 NLRB No. 30.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion in the consolidated Nutone and Avondale cases 2 a no-solicita-
tion rule may not be found to violate Section 8(a) (1) of the Act
unless it is established that the union requested that an exception be
made to the rule, and that enforcement of the rule diminished the
ability of the union to reach the employees. We find no merit in the
Respondent's position. As the Second Circuit held in N.L.R.B. v.
United Aircraft Corp. etc., 324 F. 2d 128, 131, cert. denied 376
U.S. 951:
... N.L.R.B. v. United Steelworkers of America, CIO, supra,
357 U. S. 357, 362, did not involve the validity of a no-solicitation
rule , but rather the "very narrow and almost abstract question"
whether, when an employer engages in antiunion solicitation in
a manner forbidden to his employees by an otherwise valid no-
solicitation rule, it is an unfair labor practice to enforce the rule
against them. In this context the Court held the consideration
of available alternatives to be relevant. This is clearly distin-
guishable from a case where the justifiableness of the no-solicita-
tion rule is in question, rather than the propriety of the employ-
er's use of means he had forbidden to the employees.
Here, the validity of the rule itself has been put in issue, and we hold
that it contravenes Section 8(a)(1) of the Act because of evidence
that the rule was adopted in order to stifle the Union's organizing
campaign. Compare Walton Manufacturing Company, 126 NLRB
697, 698, enfd. 289 F. 2d 177 (C.A. 5), where, after considering the
various Supreme Court opinions relating to rules against distribution
and solicitation, we held that a presumption of validity existed "in
the absence of evidence that the rule was adopted for a discriminatory
purpose," and that enforcement was also presumptively valid only
"in the absence of evidence that the rule was unfairly applied." 3
Our function under the Act, the Supreme Court has said,4 requires
us to avoid "mechanical answers" in seeking a "solution of this non-
mechanical, complex problem in labor-management relations." Thus,
the evaluation of the various factors bearing on the validity of the
rule must relate to the "actualities of industrial relations." It is
apparent, therefore, that the Trial Examiner correctly looked to the
purpose of Respondent 's rule . Since the record amply supports his
findings that the rule was not necessary to maintain production and
discipline and that it was not promulgated in furtherance of an em-
ployer's legitimate interest of serving production, order, and dis-
3 N.L.R R. v. Untited Steelworkers of America, CIO (Nutone, Incorporated), and
N.L R B. v Avondale Mill8, 357 U.S. 357.
' A similar statement appears in Star-Brite Industries, Inc., 127 NLRB 1008, 1010.
* N.L R B. v. United Steelworkers , supra, 357 U.S. at 364.
THE WM. H. BLOCK COMPANY 343
cipline, but specifically for the purpose of defeating union organiza-
tion, we adopt his finding that the no-solicitation rule is unlawful.5
Moreover, the record requires a finding that the no-solicitation rule
was unfairly and hence unlawfully enforced against employee solici-
tation on behalf of the Union. Thus, employees, with the knowledge
and participation of supervisory personnel, were permitted by the
Respondent to solicit during working time for a number of gambling
pools, to engage in widespread sale of tickets for various functions,
and to collect money for gifts for supervisors. Although Mr. Roller,
Respondent's director of operations, testified that Respondent could
"immediately notice the slowdown" which would result from employ-
ees' soliciting during working time, he also testified that he was
unaware of the gambling, ticket sales, and gift collections which did
occur. Yet, the record demonstrates that the aggregate time spent
in soliciting for gambling activities, selling tickets, and collecting for
gifts far exceeded the time spent in solicitation on behalf of the
Union. Under these circumstances, the enforcement of Respondent's
rule against solicitation in order to preclude only discussions concern-
ing the Union was clearly an unjustified restriction of the employees'
right of self-organization and violated Section 8 (a) (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that the Respondent, The
Wm. H. Block Company, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, with the following modifications :
1. Delete paragraph 2(b), and renumber the following paragraphs
accordingly.
8 We note particularly that the Employer did not have a longstanding written rule
proscribing union solicitation only, although a no-solicitation rule in a booklet which the
Employer alleges it distributed to all new employees proscribed all kinds of solicitation
and was not limited to working time . (However, the complaint does not allege that such
rule violated the Act ) Instead , the Employer first communicated the instant rule orally,
and then only during an unlawful interrogation of two known union adherents whom it
later discriminatorily laid off. No general announcement of the instant rule was ever
made to all the employees.
U We hereby overrule the Star-Brite case, footnote 3, supra, to the extent that it is in
conflict herewith as to the nature of evidence required to establish discriminatory motive
in adopting and/or enforcing a no-solicitation rule. In that case the Board concluded
that the evidence was insufficient to rebut the presumption of validity of purpose or ap-
plication of such a rule . It was shown there that the rule was limited to union solicita-
tion, was orally promulgated at the time of the union ' s advent , and was applied to two
employees who were interrogated concerning , and warned of discipline for engaging in,
further distribution of union cards . Contrary to the view expressed in Star-Brite, we
are of the opinion that such evidence indicates that such a rule may be unlawful.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. In the present paragraph 2(c), delete the phrase "and other
nonselling areas"; and insert, following the phrase, "in conspicuous
places" the words "in the service building."
3. Delete the second full paragraph of the Appendix.
MEMBER LEEDOM, dissenting and concurring :
Contrary to the Trial Examiner and my colleagues, and for the
reasons stated in Star-Brite Industries, Inc., 127 NLRB 1008, at
1010-1011, I would not find that the oral no-solicitation rule was in-
valid. I am not persuaded by the majority opinion that the Star-
Brite case should be overruled in any respect and I would therefore
continue to adhere to it. I agree, however, that the Respondent vio-
lated Section 8 (a) (1) in the other respects, as found, and that the
real reason for the discharges of Harlan and Bolton was their union
activity, and not any breach of the no-solicitation rule. Conse-
quently, I concur in the Order herein, except as it invalidates that
rule.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner A. Norman Somers in Indianapolis,
Indiana, on August 8 and 9 , 1963, on complaint of the General Counsel (as amended
at the hearing ), and answer of Respondent (correspondingly amended ), alleging that
Respondent had engaged in conduct in violation of Section 8(a)(1), including also
the discriminatory layoff of two named employees , in violation of Section 8(a)(3)
of the Act 1 The parties waived oral argument and the General Counsel and
Respondent have filed helpful briefs.2
Upon the entire record and my observation of the witnesses , I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, The Wm. H. Block Company , is an Indiana corporation engaged in
the retail sale of merchandise . In Indianapolis it has a large department store in
the downtown area ( called the main store ), two branch retail stores, and a service
building.
During the representative year ending April 30 , 1963 , Respondent received from
out of the State goods valued in excess of $50 ,000, and sold and distributed products
of a gross value in excess of $500 ,000. It is not disputed and I find that Respondent
is engaged in commerce within the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction in this case.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Local 512, Retail , Wholesale and Department Store Union,
AFL-CIO, hereinafter called the Union, is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The events here concern employees working in Respondent 's service building.
The essential facts are not in dispute , the issue being basically over the appraisal they
warrant.
'The charge was filed April 22, 1963, and the complaint was issued on June 28, 1963.
2 Both counsel are commended for the high professional quality of their discussion of
the evidence taken in the hearing held before me.
THE WM. H. BLOCK COMPANY 345
In late March 1963 union organizing began among employees in the service build-
ing. Persons at various levels of authority with Respondent then approached some
of these employees and had conversations with them, culminating, first, in a warning
given Paul Harlan and Larry Bolton on March 29, 1963,3 against violating a rule
Respondent claims it had against solicitation on company time, and on April 19
the layoff of both of them for a week without pay for the assigned reason that they
had repeated the violation after the warning.
The General Counsel claims that the rule was either nonexistent or a dead letter
in the service building, or, in any event, that it was discriminatorily applied, in that
activities within the rule's stated proscriptions had long been conducted on the prem-
ises with impunity during working hours on other matters in the presence of super-
visors and in some instances with their participation. These included betting pools
involving sales of tickets and collection and disbursement of money, and solicitations
for gifts for sick or bereaved employees and for Christmas gifts for the supervisors.
The General Counsel claims that in the circumstances Respondent is shown to have
acted out of a motive to discourage legitimate activity on behalf of and affiliation
with the Union, and not to vindicate the claimed rule.
Respondent claims it acted to vindicate the rule. It explains its permissiveness
toward the activities concerned with other than union matters as something of which
.it had not been "aware," and that as for the "supervisors," their awareness is not
attributable to it, for the term was but a classification it gave them, but in actual
fact they were only "leadmen," which is how it has since classified them. As to the
executives in higher authority, whose conduct Respondent admits to be imputable to
it, Respondent claims that all their actions are immune as incidents of enforcing the
rule.
B. The lower and higher management echelon: the supervisory status in the
service building of Richard Harlan, Charles Harlan, and Thomas Uberto
Tracing the line of authority from the top down to the three persons above men-
tioned, we have the following executives who operate from Respondent's central
headquarters in the main store: Edwin M. Hinnefeld, assistant president, and directly
responsible to him are Thomas Kimberlin, the personnel director, and Charles G.
Roller, the director of operations.
As the Respondent's director of operations, Roller is in charge of all its nonselling
functions, such as building maintenance, merchandise receiving and storing, deliveries,
etc. Immediately under him are Francis Cunningham, service and delivery manager
(in charge of the service building's maintenance, of deliveries, and of packing) and
Raleigh Wininger, manager of "general receiving and marking." Wininger is the
immediate superior of Richard and Charles Harlan and Thomas Uberto, the persons
whose supervisory status Respondent disputes. These three head up four depart-
ments in the service building (Charles Harlan two and the others one apiece). The
function of Wininger's general receiving and marking division, in essence , is to check
incoming merchandise against suppliers' invoices, mark the proper retail prices, and
see Wit that the merchandise reaches the "proper destination," i.e., is properly stored
and stocked. It encompasses that function as performed in the retail stores and also
in the service building. As its manager, Wininger is in overall charge of 187 persons.
In that group are eight department heads, five in the retail stores, the remainder
being the three in the service building here specifically involved. Richard Harlan is
assistant to Wininger in the service building and in charge of the marking and listing
department, which (apart from him) consists of 54 persons (including Cortez
McCombs, the head lister, who, in turn is assistant to Richard Harlan) ; Charles
Harlan is in charge of the furniture stock appliance department, with 11 rank-and-file
employees, and of the furniture shop, with 6 such; and Thomas Uberto is in charge of
bulk stock, with 14 rank-and-file employees.
The size of the force under Wininger and the geographic spread of his domain
would indicate that he could hardly perform his overseeing function without inter-
mediate supervision between him and the rank-and-file. There is no genuine ques-
tion but that that intermediate supervision is exercised by the eight department heads
under Wininger, including the three in the service building here involved, and that
they are supervisors in fact and in law. Respondent has over the years classified
them as supervisors, and the employees have understood them and referred to them
8 The year in every instance is 1963 unless otherwise indicated.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as such, and in deference to their rank have included them in their annual custom of
collecting contributions for Christmas-gifts for supervisors (a practice which has
continued despite Respondent's stated disapproval of it).
Respondent's classification of these persons as "supervisors" continued right up
through the hearing in a representation proceeding held May 6 and 10, 1963 (after
the occurrence of the events here in isiue). Respondent so described them in a job
classification sheet (General Counsel's Exhibit No. 3 in this proceeding) which it
prepared and introduced in the representation proceeding .4 As appears in the tran-
script of the hearing in that case (supra, footnote 4), Assistant President Hinnefeld
there testified that these three persons are, like those corresponding to them in rank,
supervisors of their respective departments, and that they have powers of hire and
discipline "to a degree," in that they can recommend hiring and initiate discipline
subject to Wininger's approval and ratification. In this proceeding, Hinnefeld testified
they did not have the power to make "effective" recommendations concerning these
matters.5
Respondent in its brief relies on Hinnefeld's testimony in this proceeding, and, in
its otherwise thorough summary of the evidence, makes no reference to his earlier
testimony in conflict with that given here. However, the authority that Respondent
even in this proceeding admits these persons to possess amply establishes their super-
visory status. Respondent has not disputed and indeed has conceded what the various
employees abundantly testified to: that these three persons have the authority to and-
do instruct the employees, assign and apportion the work among them, pass upon their
requests for leave (for short periods at least), okay appropriate written entries on the
workcards where employees have forgotten or omitted to punch the timeclock, and
rearrange their break periods. -
These persons have other recognizable indicia of supervisory rank. Charles Harlan
and Uberto each has an office in his work area, and Richard Harlan, as Manager
Winiger's assistant, shares the latter's office in the service building with him. None of
them punches a timeclock, as do the rank-and-file. The rate of pay of each is markedly
above that of the highest rank-and-file employee in his department, and in contrast
with the generality of the rank-and-file, who wear work clothes, they wear street
clothes, and devote but a minor portion of their time, if at all, to manual work, as
distinct from the responsibility they exercise in respect to the rank-and-file.
The description of their duties even as given by Respondent's executives in this pro-
ceeding attests to their authority "responsibly to direct" the work of the rank-and-file
in their departments, requiring use of independent judgment. At the outset of the
hearing in this case, Personnel Director Kimberlin, in describing the size of the force
overseen by Wininger, referred to the number of "supervisors" and rank-and-file
employees under him in each of the stores and in the service building, the quoted term
referring to the eight intermediate between him and the rank-and-file. In describing
these department heads' duties, starting with the main store, he testified they "super-
vise" their respective departments. When he came to the service building, he used the
same term in describing the duties of the department head whose name happened to
come up first (one of the Harlans), but after company counsel objected to the
General Counsel's himself using the term "supervises" in his question to the witness,
the latter adopted the expression "looks after," which would seem to be a fair Anglo-
Saxon equivalent of the original expression. Kimberlin further testified that each is
"in charge" of his department and is "responsible for [its] work," and Assistant Presi-
dent Hinnefeld testified that each is responsible for "moving the work" in his depart-
ment and for reporting "difficulties" in connection with it.
All of the above rather attests to the accuracy of Respondent's original classification
of these persons as "supervisors," as against the term "leadmen," with which it would
seem newly to have vested them.
4That proceeding, of which official notice is hereby taken, was instituted by a 9(c)
petition filed by the Charging Union and Is Case No. 25-RC-2391 on the 'Board's docket.
5 The documentation of the comparative testimonies of Hinnefeld on the point, by the
pages of the transcript of hearings in each proceeding, is as follows :
In this pro- In Case No.
ceeding 25-RC-2991
`°, - Richard Harlan_________________________________ Tr. p. 201 Tr. pp. d3, 178
Charles Harlan__________________________________ Tr. p. 212 Tr. pp. 83, 184
Thomas Uberto__________________________________ Tr. p. 207 Tr. p. 186
THE WM. H. BLOCK COMPANY 347
The above is apart also from Respondent 's not disputing the specific instances
recited by various employees of prehire or pretransfer interviews, denoting their
possession of effective powers of recommendation in respect to such matters ,6 and of
Uberto's warning employee Barry Brown with dismissal for overstaying his break.
Further information of the supervisory powers of three here involved came from
Charles Cook. Until his departure in later February 1963, Cook had been manager
of receiving and marking in the service building. During his tenure, however, he was
manager of that function only in the service building, it being not until Wininger's
accession on April 1, 1963, that the function was combined in all four branches as the
"general" receiving and marking division. As thus limited, Cook was in charge of
over 50 markers and listers (now under Richard Harlan) with Richard Harlan then
being his assistant, as he is now Wininger's. Yet Cook's testimony is undisputed that
he had full hiring and firing powers. He further testified that Charles Harlan and
Uberto were then department heads coordinate in rank with him, he and they being
at that time directly under Service and Delivery Manager Cunningham. (Charles
Harlan and Uberto were put under Winingerr upon the latter's accession.) Cook testi-
fied he "assumed" these other two department heads had authority corresponding to
his, and that so too did Richard Harlan, as his assistant, in his own absence. The
assumption would seem a fair inference from Charles Harlan's and Uberto's cor-
respondence in rank with Cook, there being no suggestion that their transfer from
Cunningham to Wininger altered the nature of their own authority. As for Richard
Harlan, in his present capacity as head of over 50 markers and listers, he has for all
practical purposes succeeded to the function of former Manager Cook.
All of the foregoing is apart from the fact that in respect to events relating to the
merits, management is shown to have dealt and treated with the three here in issue on
the premise of their being supervisors.?
It is found and concluded that Richard and Charles Harlan and Thomas Uberto, at
all times here material, were supervisors within the meaning of Section 2(11) of the
Act.8
0 Namely, the prehire interviews by Charles Harlan of employee David Border, and by
Uberto of Barry Brown ; and the interview by Uberto of David Lair in connection with
his transfer from Richard Harlan's to Uberto 's department , Harlan having brought Lair to
Uberto and told him if he preferred the work in Uberto's department , he could transfer
to it and Uberto would be his supervisor.
7 B g., Director Roller , in explaining why he wrote an interoffice memorandum saying
he had told Uberto on April 19 not to ask employees if they signed a union card, testified
it was because "I had a report from one of the other supervisors that he might have been
doing that." Uberto, after first denying his supervisory status, when asked whether cer-
tain adverse reports on an employee 's performance were a regular part of his duties,
replied, "Working on the side of management, I would say, yes, sir." A memorandum
by Roller to the assistant president of the warning he gave Paul Harlan on March 29
shows a "cc" routing to the personnel director and Richard Harlan, under whom Paul
works. Manager Wininger , in indicating that he had reports about the solicitation
activity of the two complainants , testified he received them from "various employees and
supervisors," which could only refer to the department heads intermediate between him
and the rank-and-file.
BAs to why Respondent disputes the supervisory status of these persons , as best I can
deduce, it is on the assumption that their status as supervisors under our Act is gov-
erned by whether or not they are exempted from coverage under the Fair Labor Standards
Act. Hinnefeld testified they had been determined to be within the coverage of the FLSA
as a result of an investigation by Wage-Hour Inspectors of the Labor Department, which
showed them to devote at least 20 percent of their time to "manual labor ." Respondent
would seem to equate nonexemption from coverage under the wage -hour law with non-
supervisory status under our statute as a matter of assumption , without documentation or
explicit articulation of its proposition . It would appear in point to indicate the differ-
ences: ( 1) the key terms are different . The term for a person exempted from coverage
under the FLSA, as section 13 ( a) thereof provides , is "employee employed in a bona fide
exeoutive capacity." That term is not defined in that statute but is left for definition
under regulations issued by the Secretary of Labor . The key term under our Act is
"supervisor," and that term is fully defined by Congress in Section 2(11). (2 ) Under the
regulations issued by the Secretary of Labor ( 29 CFR § 541 .1) "employee employed in an
executive capacity" is defined to be one who has all of the managerial authorities ( roughly
comparable to those mentioned in Section 2(11) of our Act) and who , in addition,
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Background of permitted betting and other solicitation activity
in the service building
The record abounds in undisputed evidence that over the years preceding the warn-
ing to Paul Harlan and Larry Bolton on March 29 and their layoff on April 19,
employees in the service building had with impunity bought and sold tickets on com-
pany time for betting pools and had also solicited collections for flowers for sick or
bereaved employees and for Christmas gifts for supervisors. Concededly, no rule
against solicitation had ever been posted on the bulletin board, which is ordinarily
used for matters Respondent wishes to call to the attention of employees ( as, e.g.,
notice of a change from a single break of a half hour to two separate breaks of 15
minutes ) or in any other manner (as in the case of no smoking signs ). At no time had
management acted to remind employees of any policy against solicitation except in
respect to solicitation of contributions of gifts for supervisors (which was disregarded
with impunity anyway). Yet despite the widespread character of the other solicita-
tions and ticket selling, for which no one was disciplined , warned, or told he was
offending against any management rule or policy, Respondent insists it had such a
rule, which applied to the service building. Its sole documentation therefor is a
manual produced by Respondent entitled "YOU and the Wm H. Block Co." Its 27
printed pages contain 58 topics , the 47th of which appears on page 20 with 3 other
topics, and reads as follows:
SOLICITATIONS
No solicitations, subscriptions , sale of tickets or posting of placards may be
made in the store for any need or project without the knowledge and approval of
the Personnel Director.
It is a store policy that associates [employees] refrain from soliciting contribu-
tions at any time for a gift to those in supervisory or executive positions . Associ-
ates are requested not to make any such contributions if approached.
Personnel Director Kimberlin testified that the current edition of the manual was
turned out by his office in 1961, and that the rule above was unchanged from that
appearing at least 8 years back in the previous editions . He testified that all employees
are supposed to receive the manual when they are employed , but admitted that there
are gaps between plan and achievement . The extent of that gap here is manifest from
the fact that except for three employees whose employment went back further than
5 years, all employees questioned on the point testified they had never received such a
booklet or seen it, so it would seem a fair inference that, in the service building at
least, there had been no distribution of the booklet within recent years. Of the three
older employees , Al Maxwell testified he had been handed some reading matter when
his employment began. but could not say either way whether it included the "YOU"
book; Jim Gibb testified he got such a book but "I doubt if I ever read it," and Al
Abraham , a witness for Respondent , testified he had been given one and although he
read it, he had completely forgotten about the rule. Management did nothing to
cause employees , even if they had received such a booklet , to single this item out from
devotes no more than 20 percent ( in the case of a retail store employee 40 percent) of
his time to nonmanagerial work ( no such qualification appearing in our statute). The
lack of any one of these takes him out of the exempted "executive" category and brings
him into wage-hour coverage ; on the other hand , Section 2 ( 11) sets forth the various
authorities in the alternative , so that the possession of any one of these brings the posses-
sor into the supervisory category and takes him out of rank -and-file status . (3) All
exemptions from coverage under the wage-hour law are required to be "narrowly construed"
to promote the "humanitarian" policy of that law of insuring "a full day's pay for a
full day's work" ( Phillips v. Walling, 324 U S. 490, 491; Mitchell v. Kentucky Finance,
359 U.S. 290 , 296) Our statute is concerned with other objectives : the one relevant
here is striking that balance in labor relations whereby management is properly held
accountable for conduct of persons in whom it has vested the kind of authority which would
reasonably cause employees to regard them as acting and speaking for management ; and
conversely , management is relieved of any duty to honor any rights in persons thus in
the front line of its managerial rank ( i e , to self-organization or collective bargaining)
of the kind it is bound to respect only in the rank-and-file . And the amount of "manual
labor" done by the possessor of one of the powers alternatively stated in Section 2(11) is
irrelevant to his supervisory status, unless shown to be so "sporadic " in its exercise
as not truly to be a regular part of his responsibilities . See, e.g., V.I.P ' Radio , Inc., 128
NLRB 113, 115 (distinguishing Hirsch Broadcasting Company, 116 NLRB 1780 , 1783) ;
Swift & Company , 129 NLRB 1391 , 1392; Ohio Power Company v N.L.R.B., 176 F. 2d
385, 387 ( C.A. 6), cent denied 338 U.S. 889
THE WM. H. BLOCK COMPANY 349
among the 57 others in which it was embedded. Nor, as stated, did it have any fol-
lowup by posting or other reminder. Former Receiving and Marking Manager Cook,
whose emplQyment went back to 1951, testified he had never received such a book, and
though he had once seen it, he had not noticed the rule, although he has since been
informed it was in there. He testified, as did other employees, that he did not know
that Respondent had any rule against solicitation, except one dealing with the lone
item concerning which Respondent issued leaflet reminders every December-solicita-
tion of contributions of gifts for supervisors. The last such leaflet, typical of the
preceding ones, is reproduced in the margin .9 As thus appears, the leaflet does not
link this with any general rule relating to solicitation of money or subscriptions or
mention Respondent's sole documentation for the claim of the existence of the rule in
the service building-the manual. The impression the employees would reasonably
derive, and which they, including former Manager Cook, did derive, is that there was
no rule or policy against any solicitation other than the kind specifically directed to
their attention every December.
More significant is that in the service building both portions of the rule, the one
followed up by a leaflet reminder concerning solicitations of gifts for supervisors, as
well as the remainder, were, with impunity, honored "very much in the breach
thereof," 10 so that it would have seemed natural for the employees to construe the
entire rule as either nonexistent in the service building or as one that management was
content to have rest with its expression of disapproval, leaving its observance to the
personnel as a matter of conscience. The leaflet notwithstanding, employees before
Christmas did solicit contributions, and the supervisors (Cook, the two Harlans,
Uberto, and even McCombs) got their Christmas gifts. Also, in April, during the
period between the warning given the two union supporters and their layoff on
April 19, and beyond, employees were openly collecting money on company time for
gifts for flowers for ill or bereaved or newly wedded fellow employees, and also
solicited to buy Girl Scout cookies. And Uberto, head of bulk stock department, was
still collecting money and dispensing tickets on company time for his Knights of
Columbus pool. This was but one of the betting pools conducted on company time
and premises.
In addition to the Knights of Columbus (or Fatima Club) pool conducted by
Uberto, there were the baseball pool and football pool conducted by Jim Gibb, occa-
sional participants in his baseball pool being Richard Harlan, his supervisor, and
former Receiving and Marking Manager Cook; the "88 Club," conducted by Al
Maxwell (a subordinate, like Gibb, of Richard Harlan, who was with Gibb at a time
when Gibb, during working hours, was figuring that week's winner in Maxwell's "88
Club" pool); and a basketball pool (Uberto's other enterprise, and rather minor in
scope compared to the Fatima Club pool). The credible and credited testimony of
the various employees-of conductors, participants, and observers alike (Gibb, Max-
well, Paul Harlan, Bolton, David Lair, Barry Brown, David Border)-is that all of
this, the collection of the money, the handing out of tickets, the $10 payoffs (referring
to those other than the K/C pool which paid off $5,000 at the KJC hall) took place
on company time. The lone dissent came from Uberto, who testified he always
managed to complete the transactions in both his pools just as the break (or lunch)
periods were fazing out. He also testified that on the occasion when two of the people
in the service building won the grand prize of $5,000 in the K/C pool (which, he said,
9It reads as follows:
GENERAL BULLETIN #595 December 11, 1962
TO: All Associates
FROM. Mr. Kimberlin
GIFTS TO SUPERVISORS
All supervisory personnel join me in asking strict observance of the following policy
"Permission will not be granted for collections to purchase gifts for supervisory
associates or executives." (This group includes divisional managers , merchandise
managers, buyers and their assistants, department heads, floor managers, and section
managers.)
We feel that such collections impose a burden on many of the associates asked
to contribute and, in addition, places the supervisory person in the embarrassing
position of not being able to return the favor.
The above is not intended to interfere with the traditional gift exchange where
department members give each other inexpensive gifts.
io Mr. Justice (then Circuit Judge) Minton in R. if. Donnelly & Sons Company v.
N.L.R.B., 156 F. 2d 416, 421 (C.A. 7).
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
created quite a furor in the establishment and, as various employees testified , intensi-
fied the desire of those not in that pool to get into it), his tour from the service building
to the Knights of Columbus hall with the winners (where they collected their winnings
and he his cut of $500) and back to the building was squeezed in during the lunch
hour, though it entailed a 16-mile round trip in the thick of the city's traffic. Upending
him a bit was Maxwell's testimony that Uberto handed him a rundown sheet and sold
him a ticket on the K/C (Fatima Club) pool during working time (at Maxwell's work
place and some distance from Uberto's area). Uberto explained this was different
because Maxwell was then buying a ticket not for himself but a girl friend.
The above was no sometime thing. Gibb, who identified his betting cards (contain-
ing 100 square boxes initialed by the contestants) with picturesque effect in varying
colors of ink, created considerable mirth at the hearing with his description of the
rampancy and openness with which all this money collecting, ticket dispensing, and
prize disbursing went on He testified: "They all [meaning employees and supervisors'
alike] played." 11 And he indicated that it had simply fallen to his lot to carry on a
time-honored tradition. "That has been going on for years," he told us, "I just carried
it for others who did it ahead of me."
D. Explanation of disparateness of treatment of union solicitation
from other solicitations
The above would indicate, prima facie at least, that the measures Respondent took
against the two union supporters were aimed not at their activity -but its subject. In
avoidance of that inference, Respondent claims that the disparateness of treatment
arose out of a disparateness in awareness, that is to say, it was as unaware of the
activity going on over the years in respect to matters not concerned with union organi-
zation, as it was aware of that activity when concerned with the latter subject from
just about its inception.
But Respondent can hardly escape having imputed to it the awareness of its depart-
ment heads, its "supervisors," as Respondent called them until this litigation arose, or
"leadmen," as it calls them now. This imputability flows not only from their being
actual supervisors, as already found, but as an inescapable probability in the light of
their responsibilities: if Respondent took the grim view of the activity proscribed by
the rule it said it did, the supervisors would hardly have permitted it, much less them-
selves participated to the extent shown. Whatever the nomenclature Respondent now
applies to their positions, their type of responsibility is such that Respondent, as a
matter of ordinary management practice, would expectably have acted to bring home
to them a knowledge of the restrictions it sought to have observed, and they in turn
would have carried out their responsibility on that score as they carry out their other
responsibilities. They could hardly have failed to impose observance or themselves
observe the rule, except in consequence of the kind of quiescense on the subject on the
part of higher management, which reasonably conveyed to them that it was not a
stricture they were called upon either to see obeyed or to obey themselves. Thus,
former Receiving and Marking Manager Cook, when asked whether he did not know
he was supposed to report to higher management that Uberto, a fellow department
head, was conducting the Knights of Columbus pool on company time, replied:
The WITNESS: I can't say that I actually knew I was supposed to. It was
probably my duty to but it was done generally all over the store so I didn't
bother to.
Uberto testified he conducted the activity on an "under the table" basis and out of
sight of higher management, as Gibb and Maxwell, on cross-examination, stated they
did in respect to theirs. This was in conflict with the openness with which the
employees who did not conduct pools, and indeed Gibb himself, testified the activity
went on So that the most that can be said for the "under the table" qualification is
that higher management was content to rest on its written expressions of disapproval,
as long as it was not put in the position of lending countenance to the conduct by the
employees engaging in it to its face. Exemplifying this last was Director Roller's
11 The record transcribes it as "paid," which is also a fact, but the context indicates
that the term used in this instance was "played ," and the mistranscription is corrected
accordingly.
THE WM. H. BLOCK COMPANY 351
response when Bolton, on being told by Roller on March 29 he had been violating a
rule against solicitation on company time, told Roller he had never known of or seen
such a rule, and asked Roller about the gift and flower solicitations. that go on openly
on the floor during working hours. Roller brushed this aside with the reply that he
"knew of no such thing." He gave no indication that he would follow this up with
any inquiry, and there is no indication that he did. At the hearing, Respondent stated
through counsel that it had no evidence to dispute the abundant testimony that all of
this activity on company time in fact went on. Such a concession is normally the
result of an investigation in preparation for the hearing. It thus confirms the truth of
what Bolton alerted Roller to on March 29, which produced no inquiry about it from
management or effort to stop it.
Respondent states that in May, which would be during the investigatory stage of the
charge here filed, General Receiving and Marking Manager Wininger told Gibb to
stop his baseball pool and Roller told Uberto to stop his Knights of Columbus pool.
Assistant President Hinnefeld testified that this was pursuant to his instructions to
Roller, when the latter in May reported to him that he "learned" of this activity going
on in the service building. This rather raises the question of why, if that activity
was thought to be in violation of a requirement deemed to apply to the service
building personnel, one in Roller's high authority would have needed to turn to
still higher authority for instructions before himself taking action or ordering his
subordinates to do so. Another question is the reconciliation of the casual treat-
ment of conduct in rampant disregard of the rule over the years with the punitive
treatment of the only recently arising activity on behalf of the Union. Respondent
explains that it did not punish Gibb because he is an old employee eligible to
retire in 2 years, so it let matters rest with a mere warning to him. But this hardly
explains the casual handling of Supervisor Uberto, and indeed the supervisory corps
for their own permissiveness, in view of what Respondent here claims was the
purpose of the rule.
Respondent attributed its action against the two union supporters to the fact, as it
claims, that the rule invoked against them was related to production. Assistant Presi-
dent Hinnefeld testified it was reported to him that the boys were soliciting on "com-
pany time and company property" and that this "was affecting productivity in this
particular area." Elaborating upon this Director Roller testified (on direct
examination) :
Q. What is the purpose of this rule, Mr. Roller?
A. Well, solicitation in the building, we are on a production line basis out
there, and on a very close schedule, and any sort of thing like that, it just slows
down production, we don't-we can immediately notice the slowdown if there
is anything unusual going on, plus the fact that there seemed to be an awful lot
of unrest among the people in that area.
And we had slowed down and we were behind on our work and so on and so
forth. [Emphasis supplied.]
The evidence as to the working time consumed in the solicitation by the penalized
employees will be reviewed in the ensuing subsection. In point here is that by this
explanation of the purpose of the rule and of the effect on production of the conduct
it proscribed, Respondent has rather impaled itself on either horn of a candor-testing
dilemma. If it is true, as Roller testified, that "any sort of thing like that just sort of
slows down production" so that "we can immediately notice the slowdown," then it
can hardly also be true that Respondent would not have been "aware" of the wide-
spread sale of tickets in the betting pools and the gift-soliciting activity conducted in
the service building on working time . On the other hand, if it is true that throughout
the whole period that this was going on on working time, Respondent was not "aware"
of it, then it cannot also be true that the activity proscribed by the rule affected
production.
The last-stated conclusion, which follows from the sheer logic of Respondent's posi-
tion, is additionally confirmed in the light of three other crucial elements in the record;
namely, (a) the lack of punitive action attending the ultimate instructions to Gibb and
Uberto in May to stop their respective pools, (b) the considerations on which the rule
on its face is shown to have been grounded, and (c) the nature of the interrogations
and other overtures to the employees regarding union solicitation.
775-692-65-vol. 150-24
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to (a), if activity of the type proscribed by the rule adversely affected production,
then the supervisors in permitting, and in some instances participating in, it would
have been remiss in more than their natural function of seeing company rules observed
and themselves setting a good example of observance. They would have been flouting
the very responsibilities toward production which Assistant President Hinnefeld and
Personnel Director Kimberlin in this proceeding testified was their basic function, that
of being "responsible for the work" (Kimberlin), "to move the work" and "to report
any difficulties in connection with the work moving through the department" (Hinne-
feld). To have permitted and even participated in the activity proscribed by the rule,
which Roller testified "just slows down production [which] we can immediately notice,"
would have involved them in a dereliction so gross as to be inconsistent with their
being permitted to remain in their positions of responsibility (in Uberto's case in
Respondent's employ at all) or, the very least, with Respondent's not having called
them to account for not "moving the work" or reporting the "difficulties" concerning
it, which would inevitably have arisen if the activity affected production. That
Respondent did none of these things and indeed, at the hearing held 3 months later,
endorsed the supervisors as "deserv[ing]" 12 higher pay than the rank-and-file, rather
persuasively attests to Respondent's not having deemed their nonobservance of the
rule as in any way compromising their responsibilities toward production (or even
apart from it, the ordinary one of seeing that management's requirements are
respected) 13
As to (b), the rule on its face shows its purpose is not to deal with the diversion of
working time from production but to pass upon the "need or project" promoted by
the activity described by the rule. Thus, the stricture is placed not merely on "solicita-
tions, subscriptions [and] sale of tickets," but also "posting of placards." One would
hardly suppose that Respondent's concern regarding this last too was over the pro-
ductive time consumed by the posting, rather than the "need to project" advanced by
the placard posted. Pertinent to all this activity is that the criterion of permissibility,
as appears on the fact of the rule, is not whether it is conducted during working or
nonworking hours, but on whether it is for a "need or project" having the "knowledge
and approval of the Personnel Director."
What has been said above is underscored also in the leaflet concerned with gift
solicitation for supervisors. As appears (supra, footnote 9), management policy
against it is not based on when this is done but that it is done. The stated objection to
it is the "burden" a solicited contribution would be on "many" employees and the
"embarrassment" it would be to the supervisor not to be able "to return the favor."
And the last sentence leaves the employees free to engage in the "traditional .. .
exchange" among themselves of "inexpensive gifts"-again without any concern over
when it is done during working or nonworking hours.
Item (c) is treated in the next subsection.
E. Respondent's inquiries and other overtures to employees
relating to union solicitation
Further showing that the rule had no purpose relating to the productive use of work-
ing time are Respondent's actions from the time it received the initial rumor about a
plan to organize the employees.
22 Hinnefeld so testified specifically concerning Uberto, implying the same for those
coordinate with him in rank and responsibility.
'$ A card produced by Personnel Director Kimberlin shows that one Ruth Jones, a
counterserver in the employees' cafeteria in the mwn store, was "taken off payroll"
April 4, 1962 (a year before the events here in issue), the explanatory entry being
"(selling pool tickets)." This item, unamplified as to background, circumstances, or other
particulars, was the only evidence adduced by Respondent concerning implementation of
the rule in any of the four branches. Even at face value, it hardly measures up to what
Respondent seems to claim for it Whatever Implementation Respondent gave the rule
in the retail stores (about which the record is silent except for the fragmentary account
of the fate of Miss Jones), the demonstrated lack of implementation given it in the service
building would indicate that what was deemed to apply in the retail stores is not the
measure of what was deemed applicable to the service building.
THE WM. H. BLOCK COMPANY 353
Operations Director Roller testified that on March 29 (the day after Paul Harlan
had signed a union card) he "had a report from Mr. Cunningham [the service building
and delivery manager] that one of the men in the delivery had told him that ... Paul
Harlan had advised him that he was planning to conduct a campaign for the purpose
of securing membership in a labor organization within the service building area."
[Emphasis supplied.] It would have seemed "natural" 14 for Roller to ask Cunning-
ham why he was making a "report" to him on such a matter, since this was hearsay
twice removed that an employee was "planning" to organize service employees, with
no indication that any conduct covered by the solicitation rule had yet occurred or
where or when. Or, assuming there were such indication, it would have been natural
to have asked Cunningham why he could not use his authority to cope with it.15
Instead, Roller testified he proceeded to the service building, and himself interviewed
Cunningham's informant. That person, a deliveryman,16 informed Roller that Paul
Harlan told him "of his purpose in conducting this campaign outside of the building"
[emphasis supplied]. Roller testified, however, that in the same conversation the
deliveryman told him of a packer who had been given a union card. Roller's testimony
from here on is less than clear. At first, he testified that the deliveryman would not
name the packer, because he was pledged to secrecy. Then Roller testified that the
packer, whom he identified as Pat Monroe, in fact showed him a card he "had
received from Mr. Bolton," and then Monroe told him Bolton merely spoke to him on
behalf of the Union and, when Monroe expressed interest, Bolton referred him to
Harlan for a card. Roller testified, further, that he asked Monroe if he could have the
card, and that Monroe refused, but on cross, he testified that Monroe's was one of
three cards he had in his possession when he summoned Paul Harlan and Bolton to
Cunningham's office.
As to what was said in his separate talks with them on March 29, the two employees
and Roller agree that he asked them whether they knew of a rule that forbade "solicita-
tion," Roller testifying that he added the qualification "on company time," their ver-
sions being that he referred to "solicitation" without the qualification, but in any event,
there is no disagreement that they answered they knew of no rule dealing with solicita-
tion, that Roller did not show them any such rule or make any reference to a manual
containing one,17 and he accused them of doing what he told them the unexhibited
rule forbade-solicitation on company time. They denied they had done so, contrary
to fact , as Harlan on the stand acknowledged , truthfully so, as Bolton on the stand
insisted as to himself. While Bolton may well have interpreted the term differently
from Roller (since his testimony, as Roller's own account of his interview with
Monroe would seem to confirm, was that he did not pass out cards but tried to interest
employees in the Union, and referred them to Harlan), until Roller's confrontation of
him on March 29, Bolton had no reason to know he had to limit his activity'to non-
working time any more than did Harlan his, the betting pool participants theirs, or the
solicitors for contributions for gifts or flowers theirs. So it may be assumed that he
did not so limit it. But it is not specifically denied that Bolton, in that conversation,
asked Roller about the other solicitations going on on company time, to which Roller
replied he "knew of no such thing." 18
14 E. Anthony & Sons Inc. V N.L.R.B., 163 F 2d 22, 26 (C A D C.), cert denied 332
U.S. 773.
"As earlier related, Cunningham had been in charge of all departments in the building
before April 1, when Wininger took over some of them. ( When Wininger is out of the
building, Cunningham continues to be in overall charge ) On the premise of his authority,
Respondent put Cunningham on the stand to explain his failure to have stopped the
betting activity (his testimony being that he too had not been aware of it, else he would
have stopped it).
18 It would appear he was not involved in the campaign, since the bargaining unit for
which the Union filed its Section 9 petition did not include truckers.
17 Neither of them saw any such rule until after they came back following the suspension,
when Cortez McCombs, the head lister, showed it to Paul Harlan.
>e Respondent claims the boys' lack of candor to Roller on the score of their prounion
activity reflects on their credibility . This suggests a real coniiict concerning material
matters, which is not the case. See also infra, footnote 22.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The interview terminated with each signing a memorandum, that of Paul Harlan
below reading the same as Bolton's (except that the latter 's shows no "cc" routing) :
FORM 251 INTER-DEPARTMENTAL CORRESPONDENCE
DATE: March 29, 1963
FROM: Charles C. Roller
TO: Mr. Edwin Hinnefeld cc: Thomas Kimberlin
Richard Harlan 19
SUBJECT
I, have talked to Paul Harlan, House Number 872-16, and advised him that
soliciting on company time is against the company rule. A voluation [sic] of this
rule by any employee is cause for dismissal.
(S) Paul Harlan
On April 19 Paul Harlan and Bolton were summoned again to Cunningham's office.
This time they were confronted by Personnel Director Kimberlin. He told them they
had solicited on company time, that they were being laid off without pay for a week,
and that for the next violation they would be dismissed. Roller testified that for their
offense he had been about to dismiss them, except that after consultation on the part
of Assistant Piesident Hinnefeld with counsel, it was decided to limit the penalty to a
week's suspension without pay.
This step was taken after inquiries were made of employees by Manager Wininger,
Director Roller, and Personnel Director Kimberlin. This would have been an appro-
priate occasion, if Respondent's' concern were over activity proscribed by the rule,
to have asked about all that kind of activity, regardless of subject, and if it was use
of working time, to have asked about that, especially since Bolton had alerted Director
Roller about the other activity on March 29. The undenied recitals of the employees
indicate the inquiries were focused on a single subject, with no discernible distinction
as between working and nonworking time. Gibb testified Manager Wininger
approached him telling him he was "new" in the department (which would put it
sometime early in April) and asked "what the trouble was around the department."
Gibb "told him [he] had a union card," and explained the "employees were unhappy
about the recent [part-time] employment of [city] firemen [to do maintenance work]"
which resulted in the regular employees "being put on short time."
On April 16 Personnel Director Kimberlin approached Al Abraham, while he was
at work on the dock. He testified to the following, on direct examination by Respond-
ent's counsel:
Q. What did he ask you, if anything?
A. He asked me had I been approached by anybody in regards to the Union?
Q. Did he ask you if this was during working hours?
A. No, he didn't ask me that.
Q. He didn't ask you that?
A. No, sir.
On April 18 Al Maxwell too was approached while he was at work, first by Opera-
tions Director Roller and then by Personnel Director Kimberlin. Concerning Roller,
Maxwell testified:
Q. Can you tell us what was said on that occasion?
A. I was out on the dock for an empty hamper, and he asked me if I was
happy at my job, and I says naturally I was, at my age, I felt like I was fortunate
to have my job.
Q. Did he say anything else on that occasion?
A. He asked me if I knew anything about the stuff that was going on around
the warehouse, and I says, "Naturally I have heard rumors the same as you have.
Other than that I can't tell you anything.
Q. Did Mr. Roller say anything else on this occasion?
A. Well, he said, "If you don't have anything to tell me, that is all I have,"
and we just passed a general conversation.
19 In the prior subsection concerned with the supervisory status of the two Harlans and
Uberto reference was made, as among the numerous other relevant items, to management's
dealing and treating with them on the premise of their being supervisors ( supra, foot-
note 7 ) An illustrative instance is the "cc" routing to Richard Harlan, the head of the
marking and listing department in which Paul Harlan works . As stated , the memo on
Bolton does not have a "cc" routing In his instance , the corresponding name would
be that of Uberto or also Richard Harlan, his testimony being that his work alternates
between their respective departments.
THE WM. H. BLOCK COMPANY 355
In fact, a week earlier Maxwell had gotten ' a card from Harlan in Maxwell's car
on the way home from work. His answer to Roller would seem to have been
received with some skepticism, for about a half hour later, as Maxwell testified, while
he was again headed for the dock with a hamper, "Kimberlin walked along beside
[him]" and:
He asked me what was going on around the warehouse , and I said, "As I have
told Mr. Roller, I have heard rumors the same as we all have, and I have no
comment otherwise."
Maxwell testified that though in each instance the Union was not specifically men-
tioned, he "understood they were asking me who was passing out cards," and that
that was also how he took them to understand his reference to "rumors ." His inter-
pretation was confirmed by Kimberlin 's further statement to him in the same conver-
sation. Kimberlin told Maxwell that he knew Harlan and Bolton were passing out
union cards, but that they "wouldn't get anywhere with it." He told Maxwell how
long he had known him , and added "that at [Maxwell 's] age jobs were hard to find"
(with which Maxwell expressed agreement).
On April 22 , the Monday after Harlan and Bolton were laid off, Maxwell was
summoned from work to Cunningham's office, who took him by car to the main
store, and then told him to go to Kimberlin 's office. There Kimberlin informed
Maxwell that Harlan and Bolton had been "laid off for a week ." He asked Maxwell
if he "would be willing to sign a statement saying that the cards were being passed
out on company time." He also told Maxwell that "some more employees had gra-
ciously come forward and signed statements ." Apart from having gotten his own
card from Harlan after hours and away from the building , Maxwell further testified
he had never in fact seen either of the two hand out cards during working hours.
He told Kimberlin he "had no proof' of what Kimberlin was suggesting to him
and that he "could not agree to sign the statement."
Though Kimberlin 's statement about "employees [who] had graciously come for-
ward" was in the plural, the record indicates that the more accurate reference would
have been in the singular . On April 18 , which was 2 days after Kimberlin had ques-
tioned Abraham in the manner previously quoted and 1 day before the layoff, Abra-
ham was summoned to Kimberlin 's office. He went there twice that day, first signing
a single statement naming Harlan and Bolton , and the second time signing two sepa-
rate statements naming each individually (counsel having advised it that way, since
the matter involved separate conversations with each ). The statement concerning
Bolton read as follows:
FORM 251 INTER-DEPARTMENTAL CORRESPONDENCE
DATE: April 18, 1963.
FROM:
TO:
SUBJECT:
The day before yesterday, Tuesday at approximately 9:30 in the morning
while I was working , I was approached by Larry Bolton in regard to signing a
card for the Union. I told him that I was going to think it over a little bit; that
I wanted to consider a few facts in the situation. This took place in the general
area of the main aisle to the marking room.
I am giving this statement of my own free will , with no pressure and with no
coercion.
Signed: Albert L. Abraham
The one concerning Harlan was on the same form , but the matter under "Subject"
read:
Yesterday morning, Wednesday, while I was working I was approached by
Paul Harlan in regards to signing a card for the Union . He said that if I signed
a card now it would not cost anything ; if I didn't sign it it would cost me $10
later. I told him that I would consider it and let someone know in the future,
because I wanted to consider the entire situation
I am giving this statement of my own free will with no pressure and with no
coercion.
Abraham testified that in neither instance had Bolton or Harlan offered or shown
him a card, and that while his conversation with Bolton was in the work area, the
one with Harlan was in the restroom, where he had gone for a smoke and encoun-
tered Harlan, and thus not "while I was working" as the statement reads. The fair
inference is that Kimberlin 's accusation , which he assigned to the two employees as
the reason for their suspension , was based on the single conversation of each
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee with Abraham.20 Since each instance recited by Abraham involved a con-
versation, it seems relevant to view them in the perspective of the employees' general
conversational habits while at work. Abraham testified that the employees move
about in their work, that "we talk as we work right along" on "different subjects"
such as "oh, baseball and maybe television programs the night before," and that
"these conversations last . . . I would judge around three or four minutes at the
most," but that the conversation with the two employees he estimated to be about
2 minutes longer. Bolton's estimate of the length of the talk with Abraham did not
come up to Abraham's estimate of the talks about baseball. I would assume that
it is not out of line to take cognizance of that aspect of the national pastime, which
consists of the spirited morning postmortems on the merits of the umpire's call and
the manager's judgment. in keeping the tiring pitcher on the mound. Abraham's
short estimate of the length of these dialogues rather attests to the absorbing char-
acter of the topic. The fair judgment is that Abraham's conversations with Harlan
and Bolton on the Union were no different in duration from the ordinary conversa-
tions among employees on other subjects while at work. And if they can be said to
have lasted the 2 minutes longer that Abraham estimated, there is no indication that
Respondent ever asked him about it or that this entered into its deliberations.
(Abraham, in fact, testified that these conversations, in the manner previously shown
concerning the very items proscribed by the rule, did not interfere with the work.)
Further showing Respondent's concern to be over how the union campaign was
taking effect rather than whether working time was devoted to it, was an interview
Director Roller had with Supervisors Uberto and Charles Harlan the early afternoon
of April 19 before the layoff that day. That item arose during Respondent's case,
after Roller on cross-examination identified his office memorandum stating that on
April 19 he told Uberto "he has no right to ask any employee whether he has signed
a [union] application," and explained (supra, footnote 7) that he did this because he
"had a report from one of the other supervisors that [Uberto] might have been doing
that, and [he] wanted to be sure [Uberto] understood that he had no right to do that
unless it was just on a personal basis or a personal acquaintance of a friend." 21
Uberto's version would indicate a different purpose. He testified that Roller had
summoned him and Charles Harlan by telephone to the main office. When they
arrived, Roller asked them, "Do you know anything about the union activities at the
service building," to which Uberto, as he testified, replied that "on several different
occasions, union talk has been brought to my attention and various names have been
mentioned ... about union." He testified that he named three employees then in his
department, "one a former employee by the name of Wilbur Shumway, another one
is Barry Brown, and I believe the third was Larry Bolton." Uberto testified further
that "to the best of [his] knowledge" Charles Harlan reported that "he had one or
two employees that worked for him that had signed cards," one of them being David
Border. Uberto testified that he also informed Roller that Shumway told him that
Bolton "had contacted him repeatedly," and "asked [him] to get Mr. Bolton off his
back," but as would appear from Roller's question to the supervisors and the char-
acter of their answers, the subject basically was the ascertainment of the extent to
which the campaign was taking hold and the identification of the recruited and the
recruiters. Confirming this is what Uberto had written down as an addendum to a
report of a warning against tardiness he had given Brown. The report was made a
day after an incident testified to by Brown and employee Border, soon to be detailed.
After Brown signed the paper and without Brown's knowledge, Uberto added the
following at the top above a drawn line: "(Mr. Brown also told me he had been
contacted by Larry Bolton about the Union ) Remark after warning." 22
20 The testimony of Respondent's executives that they had "reports" of more extensive
activity of that character during working hours is weighed against Respondent's efforts
with Maxwell to augment its documentation after the fact and that no other documenta-
tion was produced. It is also weighed against the demonstrated vulnerability of their
unsupported statements on other matters when tested against established fact. The
weight of the evidence is found to be against these assertions, and they are not credited.
a After this he quoted himself as having told Uberto he "did not want it done on com-
pany time," a subject which is not mentioned in the memorandum.
22 Brown denied that he had so stated to Uberto, and Uberto did not testify that Brown
had in fact so informed him. This rather moots Respondent ' s attack on Brown's credi-
bility based on his volunteering, when he denied having told Uberto what the latter wrote
down in his addendum , that "that would be suicide ," the implication being, as he con-
firmed in response to my own question to him, that he would not have told Uberto that
Bolton had contacted him about the Union even if it had been the fact. Respondent's
THE WM. H. BLOCK COMPANY 357
The warning slip incident came a day after the following: Brown had been in the
cafeteria and was overstaying his break. David Border testified that he and Harry
Chapman were then in the main office of the building on some business; that they
saw Uberto observing Brown in the cafeteria in conversation with Bolton and heard
him say to Manager Wininger, "They are in the cafeteria now talking about the
Union and it is past break time." The two then related this to Brown. As Brown
emerged from the cafeteria, Uberto asked him "if [he] was ready to go back to work
yet." Brown replied that he was, explaining that he had started on his break 5 min-
utes past the usual time and that he "was just talking to Larry there." Uberto asked
him, "What were you talking about?" Brown did not reply. At the work place,
Uberto told him, "Well, you used to be a hell of a good employee, Barry, but I am
very disappointed in your work," adding that if he "didn't straighten up shortly [he]
would be dismissed." He then "wanted to know if [Brown] had anything to tell
him." Brown answered he did not.
Late the next day, Uberto came to Brown and told him, "I have a surprise for you
... you are going to get a raise." He explained it was both a "progressive" raise and
one based on "merit." 23 Brown asked how this squared with Uberto's expression
of "disappoint[ment] in [his] work" the day before. Uberto replied "your work is
fine," but that Wininger "required [him] to have [Brown] sign a statement that he had
been warned about being tardy." Brown then signed a statement, written out by
Uberto, reading (General Counsel's Exhibit No. 12):
In my conversation with Mr. Brown about the raise in pay, I also talked to him
about the continuous tardiness. Reporting to work on time also taking too
much time on break periods. This is his 3rd warning. Action will be taken if
not corrected.
Signed C. Barry Brown
After he signed the paper, Brown inquired if the request to sign was because
Uberto thought he was "in the union" and would "use this [writing] against [him]
later." Uberto assured him to the contrary, saying he had known Brown's father
and he "wouldn't trick [him]." He repeated that Wininger "required" it and assured
him that it was "not in regard to the union." Uberto then sent the paper on with the
previously mentioned addition, in Brown's absence, about the latter's having "told
[him] he had been contacted by Larry Bolton about the Union." 24
point, as In the case of Paul Harlan's and Bolton's denials to Roller on March 29, is that
the witness' assertion of the degree of his intended candor to Uberto about his interest in
the Union is a measure of the probable candor of his testimony. In making this paral-
lelism, Respondent would seem to overlook, from the witness' own account, the manner in
which the element of self-preservation entered Into his disinclination to disclose his interest
In the Union to Uberto, a disinclination which, when under oath, he volunteered and
candidly acknowledged, as did Paul Harlan vis-a-vis Roller. At all events, there would
seem to be no real conflicts concerning versions of events in which Respondent's point
looms as particularly crucial A possible exception Is In the version of the first of the
talks hereafter related in the text that Uberto had with Brown after seeing him In con-
versation with Bolton. As to this, Brown's version has the circumstantial corroboration
given by the undenied testimony of employee Border and by Uberto's own postscript to
tardiness report signed by Brown. Concerning the qualities of their testimony as a whole,
Brown's is free of the impugning aspects, which characterized Uberto's testimony in
respects previously mentioned (e.g, supra, footnote 7) and his discredited assertions of
how he had managed to crowd all his betting transactions into the fazing-out period of
his breaks or lunches.
=s When the two suspended employees, Paul Harlan and Bolton, came back to work on
April 29, they were told they had gotten a "progressive raise" as of April 22, a category
which Assistant President Hinnefeld testified was an adjustment made for older employees
when the starting rate for new employees in their classifications has been raised.
2' Uberto, in his account of the interview with Roller on April 19, tied in what he then
said to Roller about Brown with the tardiness warning at the time of the raise This
would indicate that the talks between him and Brown occurred shortly before Roller's
interview with Uberto and Charles Harlan on April 19, rather than about 2 weeks after
the representation hearing, as Brown recalled the date. (Also, while Brown's name, he
being an ex-employee, is not on the job title sheet (General Counsel's Exhibit No. 4),
it would appear from it that April was the time certain employees received raises-Paul
Harlan and Bolton on April 22 , during their layoff, and employees doing "stock" work,
as did Brown , on April 15.)
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was previously mentioned that according to Uberto's account of the interview
with Roller on April 19, Charles Harlan mentioned David Border as among "one or
two employees that worked for him that had signed cards." Border testified to the
conversation in which he confirmed that fact to Charles Harlan.25 This was just
after Border had been near Paul Harlan and had gotten off a forklift. When he
came down, Charles Harlan, who had been standing there, "kind of laughed" and
asked, "Did [Paul] Harlan try to give you a union card?" Border replied that Harlan
had given him one 2 weeks before. They "got to talking about [whether] the union
was any good to the employees," and as reason for its not being "good," Charles
Harlan remarked to Border, "You know you have got a job now if you do your work,
but if the union gets in will you know you have got one?" 26
F. Conclusionary discussion
The inference of discrimination which naturally flows from the marked disparate-
ness of treatment in respect to the same kind of activity seems rather formidably
confirmed by the evidence provided by the nature of Respondent's actions. Against
a background of permitted solicitation and ticket selling on company time when
related to other subjects, Respondent, at the highest level of authority, got into action
with the first rumor regarding the subject of union organizatoin, before any indica-
tion that there had yet been any solicitation in connection with it, either on working
time or even in the building. Thereafter, the two employees identified as the pro-
tagonists of the campaign were called in and accused of violation of a rule, not there-
tofore known by or exhibited to them. And as it was represented to them, it was
neither reconciled with the impunity with which the same kind of activity on other
subjects was being conducted on company time, nor sought to be done when one of
the accused employees called it to the warning executive's attention.
The inquiries thereafter, Kimberlin and Roller of Maxwell about what he knew
about union solicitation, Kimberlin of Abraham about whether he had been solicited
for the Union without reference to time, Charles Harlan of Border as to whether
Paul Harlan had offered him a card, Wininger of Gibb concerning the nature of the
"trouble," and indeed the nature of Director Roller's inquiry of Supervisors Uberto
and Charles Harlan, indicate Respondent's attention to have been focused on the
subject of union organization and the identification of its sponsors and supporters,
rather than any diversion of working time caused thereby. Such remarks as accom-
panied the inquiries would indicate the same. Kimberlin's telling Maxwell he knew
Paul Harlan and Bolton were passing out cards, that they would not get anywhere
with it, and that at Maxwell's age jobs were hard to find hardly suggests a concern
over the working time consumed by the venture, as against whether the two employees
were still continuing their sponsorship of the Union on any basis, and whether they
would succeed in their objective; and they rather carry an intimation of the dire
economic risk faced by a man of Maxwell's years getting involved in that venture.
Similar in import, though less in degree, was the comparison Charles Harlan made
to Border concerning security of an employee's tenure without the Union and with it.
Respondent did, to be sure, pin its punitive action against the two employees to an
accusation that they had continued to solicit for the Union on company time. As their
executives testified, they were in consultation with counsel and so they knew that
their actions, the warning and layoff both, would have not even color of legal validity
unless tied in with the element of working time. But the pretextual character of the
last is manifest from the general background and its specific application. Concerning
the first, as previously indicated, the very rule relied on had no purpose relating to
use of working time and the permissiveness toward such activity on other subjects
on company time is inconsistent with the claim that the proscribed activity affected
production or was thought to do so.
Concerning the specifics, it is difficult to reconcile Respondent's expressed concern
over working time with the fragile basis for the accusation on which it suspended
the two employees after inquiries to which Respondent's highly placed executives,
with visits of unwonted frequency to the service building, were devoting so much of
their time. All they came up with-all that they had to support the accusation that
25 Border was not too certain about the time and thought it was after the layoff of the
two complainants But Charles Harlan's statement to Roller, as narrated by Uberto,
would indicate this too occurred before the April 19 interview.
2e Border testified to the above without denial Charles Harlan was not at the hearing
and did not testify. At the outset of the hearing, counsel stated Charles and Richard
Harlan were on vacation, and requested a postponement because of it, which was denied.
THE WM. H. BLOCK COMPANY 359
Kimberlin used as the basis for the penalty-was employee Abraham's statement
concerning a single separate conversation each of them had with him about the
Union, and , as appears , of substantially the same duration as the conversations that
employees have "right along" on other subjects while at work.
The thinness of the basis for the assigned reason for the suspension would seem
to have been apparent to Respondent itself, when it sought further documentation
therefor ex post facto from an employee whose previous interrogations on the subject
had yielded no information to support what he was now being asked to subscribe to.
After two unsuccessful quests for information from Maxwell before the fact, it
requested him after the fact to sign a statement attesting to actions he had given
Respondent no reason to believe he had seen, and, as his testimony shows, he had not
in fact seen. Accentuating the importunate character of this overture was the man-
ner in which it was handled. He was taken from his work to the main office, a
symbol of high authority particularly impressive to one in his lowly position. In
that setting, the executive who a few days before had pointedly reminded him of the
difficulty of finding a job at his age, requested he sign the suggested statement, telling
him that other employees had done so, the characterization of them as having
"graciously come forward" carrying an opprobrious intimation concerning employees
not that gracious, which would hardly be lost on one in Maxwell's situation.
That despite the apparent awareness of the near-zero basis for the accusation,
Respondent should have been ready, as its executives testified, to discharge the two
employees and would have done so but for counsel's caution in favor of a milder
step at this time, rather attests to the depth of the animus toward them because of
the project they were promoting.
The suspension of the two employees was thus an act calculated and intended to
discourage their activity on behalf of the Union and the other employees from
affiliating with it, in violation of Section 8(a) (3). It also interfered with, restrained,
and coerced employees in the exercise of their guaranteed rights, in violation of
Section 8 (a) (1) as did also, in the total context here presented, the interrogations
about union activity previously narrated (Wininger of Gibb, Kimberlin of Abraham,
Roller and Kimberlin of Maxwell, Uberto of Brown, and Charles Harlan of David
Border, and the items Roller himself introduced, namely, his interrogations of the
deliveryman and of the packer on March 29), the warning of discharge made by
Roller to Paul Harlan and Bolton on March 29, and the intimations of peril to job
security made by Kimberlin to Maxwell and by Charles Harlan to Border.
All of the above would follow even if one were to accept Respondent 's contention
that it had a "valid" rule against solicitation on company premises during working
hours. Assuming its validity , it is difficult to envision a disparateness of application
more marked and an explanation therefor more self-refuting . But operating against
that assumption is the failure of the rule relied on to contain the very limitation of
the prohibition to working time on which Respondent bases its claim for the rule's
validity.
Yet the flaw in Respondent's position would seem to me to be more deep rooted.
This is so even if we were to assume that Roller's qualification of the rule as he stated
it to the two union supporters on March 29 so effectively limited the prohibition to
working time as to have overcome the vulnerability of the rule in not expressing that
limitation on its face. A rule prohibiting union solicitation on company premises
during working time is "presumptively valid" (Walton Manufacturing Co., 126 NLRB
696, enfd. 289 F. 2d 177 (C.A. 5) ), just as one forbidding it during nonworking
time is "presumptively invalid." Each presumption is rebuttable. The presumption
of invalidity can be overcome by a showing of special exigencies of production or
discipline making it necessary to extend the prohibition to nonworking time. On
the other hand, the presumption of validity is rebuttable by a showing that the rule,
though limited to working time, was promulgated not to promote efficiency of pro-
duction but for the discriminatory purpose of repressing the employees in the legiti-
mate exercise of the rights guaranteed by Section 7. The evidence shows that over-
riding element to have been present here. The language of the rule and the kind of
implementation given , as previously indicated , shows that the rule was not intended
to prevent the diversion of working time from production, but to supervise the "need
or project" to which employees are asked to contribute or subscribe. Until passage of
the Act, management's right on that score was absolute in respect to all projects
including those which have since been given the protections of Section 7. With the
passage of the Act, the right of employees to solicit fellow employees for union
membership even on company premises ceased to be a matter of management grace,
as it still continues to be in respect to soliciting for any projects not encompassed by
Section 7 . But, as amplified in the Supreme Court's classic opinion in Republic 4 via-
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion Corporation v. N.L.R.B., 324 U.S. 958, even the rights under Section 7 are not
absolute and are subject to a reasonable accommodation with "the right of employers
to maintain discipline in their establishments ." The Board in one of its earliest efforts
to work out that accommodation drew the line between working and nonworking
time , and on the oft-quoted observation in Peyton Packing 27 that "working time is
for work," attached with court approval, the previously mentioned presumption of
validity to rules forbidding union solicitation by employees on company premises
during working time and the presumption of invalidity to a rule forbidding it during
nonworking time.
As stated, the elements already reviewed overcome the normal presumption of
validity for the rule here relied on even if it were true that its prohibition in respect
to union solicitation was limited to working time. The language and history of the
rule showing it to have had no purpose connected with the use of working time,
taken in connection with Respondent's actions toward these two union supporters, in
contrast with the prior and contemporaneous permissiveness toward other solicita-
tions during working time, and even after employee Bolton specifically alerted Direc-
tor Roller to it on March 29, together with the kind of interrogations and overtures
made by Respondent to employees on the subject, showing the target to be union
organization and not use of working time, establish that the rule as it was invoked
on March 29, was discriminatory in its motivation, and was invalid for that reason,
regardless of whether or not its prohibition were limited to working time. Its pro-
mulgation for that purpose on March 29 thus independently violated Section 8(a)(1)
and accentuated the coercive character of the ensuing conduct heretofore found to
have been in violation of the Act even apart from its invalidity based on the motive
of its promulgation.28
27 49 NLRB 828 , enfd. 142 F. 2d 1009 ( C.A. 5), cert denied 323 US. 730.
28 I find the following portions of the complaint not to have been sustained:
Raises: The General Counsel, characterizing them as part of a "carrot and stick" ap-
proach, claims the "progressive raises" announced to Paul Harlan and Bolton on their
return on April 29 and the "progressive " and "merit" raise announced by Uberto to
Barry Brown the day after he spoke disparagingly of his performance and concurrently
with having him sign a tardiness warning, were intended as inducements to win them
away from the Union. The evidence on that score is inconclusive. Though Paul Harlan
and Bolton testified they had never heard of "progressive raises" and Cook, the former
receiving and marking manager, testified that neither had he , Respondent ' s job title sheet
(General Counsel's Exhibit No 4) shows that category of raise to have been given em-
ployees before the events here in issue , and there is nothing in the record to dispute the
assertion that the occasion for them was when Respondent raised the starting rate in
given classifications. As to Brown, I have previously noted (supra, footnote 24) that
other employees doing "stock" work like him had gotten raises the week of April 15,
although termed "bonus " At any rate, in the absence of fuller bodied evidence on the
matter, I would deem the evidence insufficient to sustain the General Counsel's claim that
they had the motive he ascribes to them.
Surveillance : The General Counsel sees in the questions to employees, particularly those
put by Kimberlin , a species of "surveillance ." To interpret the term that broadly would
eliminate the distinction between it and interrogation. To be sure , interrogation has a
touch of surveillance in the sense that each is intended to acquire information concerning
union affairs . But though they may have a common objective the difference would seem
to me to lie in the method . If the two terms are to do other than merely duplicate each
other, I would think surveillance would connote management 's undertaking to observe or
commissioning others to observe the activity while it is in process , instead of merely ask-
ing about it after the fact.
Wininger's talk on July 1 with Bolton : On that day , Wininger called Bolton to his
office and upbraided him for the untidy appearance of his stockroom , to which Bolton
replied, "All this boils down to is you called me into the office over the Union," after which
differing comments were exchanged between them concerning the benefits of unionism.
Wininger gave no intimation to Bolton of the kind Kimberlin gave to Maxwell or Charles
Harlan gave to Border that affiliation with or support of the Union would imperil one's
tenure with Respondent . In further contrast to the other instances , the subject of
unionism was here initiated by the employee , not the management representative. Con-
ceivably , the ground on which a management representative calls an employee, who is
known to be an active union supporter , to account for his work can be so patently base-
less as to make it unlikely it was other than a pretext . The evidence in this case would
not support such a claim here as to Wininger.
THE WM. H. BLOCK COMPANY
IV. REMEDY
361
The usual requirement will issue that Respondent cease and desist from the unfair
labor practices found-here of broad character since the violations found go to the
heart of the Act.
By way of affirmative remedial action, Respondent will be required to reimburse
Paul Harlan and Larry Bolton for the pay they lost in consequence of their suspen-
sion, with interest, and also rescind the application of the rule , here found to have
been discriminatory in its purpose to solicitation or other activity on behalf of the
Union in the service building or other nonselling areas. It has been established that
the rule has no purpose relating to the use of working time and that its purpose is to
limit solicitations of employees to those projects having management's "knowledge
and approval." The rights guaranteed by Section 7 of the Act may not be made
subject to that kind of condition , and the extension thereof here to union solicitation
was invalid because Respondent 's purpose in doing so was to put employees in fear
of legitimately exercising their guaranteed rights. This is not to say that Respondent
is not free in the future , at any time that it may deem it warranted in the interests of
efficiency or discipline , with no intended use thereof as a cover to repress the legiti-
mate exercise by employees of their Section 7 rights, to promulgate and enforce a
rule limiting union solicitation or other such activity to nonworking time. It is
merely to say that what it may legally do it has not done yet, and what it has done
was done for an illegal purpose, and hence needs to be undone in order to erase the
coercive consequences of its action and to help provide a repression -free climate for
the exercise by the employees of their guaranteed rights.
Upon the foregoing findings and the entire record, I hereby state the following:
CONCLUSION OF LAW
1. By laying off Paul Harlan and Larry Bolton because of their sponsorship of the
Union, Respondent discriminated in respect to their hire and tenure , thereby discour-
aging membership therein, and engaging in and being engaged in an unfair labor
practice within the meaning of Section 8(a) (3) and ( 1) of the Act.
2. By invoking a rule against solicitation for the purpose of putting employees in
fear of legitimately exercising their right to self-organization under Section 7, Respond-
ent interfered with , restrained , and coerced employees in the exercise of such rights,
thereby engaging in, and being engaged in an unfair labor practice within the mean-
ing of Section 8 (a) (1) of the Act.
3. By disparately enforcing said rule solely in respect to solicitation or advocacy
on behalf of the Union while permitting like activity in respect to all other subjects
or projects , Respondent interfered with , restrained , and coerced employees in the
exercise of their guaranteed rights in violation of Section 7 of the Act.
4. By, in the context here presented, interrogating employees concerning what
they know about union solicitation, and whether and by whom they had been solicited
for membership therein, warning employees of discharge if they engaged in union
solicitation, and conveying to other employees, through references to the difficulty of
getting a job at their age or that affiliation with a union otherwise puts the security
of their tenure in question , Respondent interfered with, restrained , and coerced
employees in the exercise of their guaranteed rights, thereby engaging in unfair labor
practices within the meaning of Section 7 of the Act.
5. The foregoing unfair labor practices affect commerce within the meaning of the
Act.
6. Respondent has not engaged in any unfair labor practices other than as herein
specifically found.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant to
Section 10 (c) of the Act, it is recommended that the Respondent, The Wm. H. Block
Company, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 512 , Retail , Wholesale and Department
Store Union , AFL-CIO, or any other labor organization , by laying off or otherwise
discriminating in respect to the hire or tenure of any employees under color of
enforcing a rule against solicitation promulgated for a discriminatory purpose or
applied in a discriminatory manner, or on any other like pretext.
(b) Under color of a rule invoked or applied for the purpose of restraining or
coercing employees in the legitimate exercise of their rights under Section 7, threat-
ening employees with discharge , layoff, or other reprisal for exercising those rights.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Interrogating employees concerning their union affiliation or whether and by
whom they have been solicited for union membership , having as a purpose to uncover
a pretext ' for reprisal against union supporters or having a purpose or reasonably
forseeable effect of interfering with , restraining , or coercing employees in the legiti-
mate exercise of their rights under Section 7 of the Act.
(d) Threatening employees , expressly or by intimation , that affiliation or support
of the said Union or any other labor organization will impair the security of their
tenure with Respondent.
(e) 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 the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in any other concerted
activity for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Make Paul Harlan and Larry Bolton whole for the pay losses sustained by
their layoff on April 19, 1963, with interest.
(b) Rescind the application of the rule at page 20 of its manual , under the topic
"Solicitations ," to union solicitation or other activities protected by Section 7 of the
Act.
(c) Post at its service building and other nonselling areas, copies of the attached
notice marked "Appendix ." 29 Copies of said notice , to be furnished by the
Regional Director for Region 25 shall , after being signed by the Respondent's
authorized representatives and maintained by them for 60 consecutive days there-
after in conspicuous places, including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the Respondent to ensure 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 therewith 30
It is further recommended that the complaint be dismissed msotar as it alleges any
unfair labor practices other than as herein found.
29 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".
81 If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for Region 25, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
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 Rela-
tion Act, as amended, we hereby notify you that:
WE WILL NOT under pretext of enforcing a rule regarding solicitation or any
other pretext, discourage membership in or activity on behalf of Local 512,
Retail, Wholesale and Department Store Union, AFL-CIO, by discharging,
laying off, or otherwise discriminating against any employee for legitimately
engaging in such activity, nor will we threaten to do so.
WE WILL NOT apply the rule on page 20 of our manual under the topic
"Solicitations" to prohibit union solicitation or other legitimate union activity
in the service building or other nonselling areas, and we hereby rescind any prior
application of said rule contrary to the above.
WE WILL NOT question employees about their union affiliation, about other
employees' union activity, or about whether and by whom they have been solic-
ited for membership in the Union, for the purpose of uncovering a pretext on
which to penalize or otherwise discriminate against union supporters, or for the
purpose or with the reasonably foreseeable effect of putting employees in fear of
exercising their freedom of choice in respect to affiliation with or activity on
behalf of the above or any other Union.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 363
WE WILL NOT, either expressly or by intimation , threaten employees that
their jobs will be less secure with us as a result of their affiliating with or sup-
porting the above or any other union than it would be if they refrained from
doing so.
WE WILL in all other respects honor the rights of our employees to self-
organization , as guaranteed by Section 7 of the Act.
WE WILL make Paul Harlan and Larry Bolton whole for the loss of pay sus-
tained by them as a result of having been laid off on April 19 , 1963, with interest.
All our employees are free to join or not to join , or to support or not to support,
Local 512, Retail, Wholesale and Department Store Union, AFL-CIO, or any other
labor organization, without fear of reprisal or other discrimination by reason of
their choice either way.
THE WM . H. BLOCK COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Any employees having a question concerning the meaning of the above notice or
concerning compliance with its requirements may inquire by mail , telephone, or in
person at the Board 's Regional Office , 614 ISTA Center , 150 West Market Street,
Indianapolis, Indiana, Telephone No. Melrose 3-8921.
International Brotherhood of Electrical Workers, AFL-CIO;
International Association of Machinists, AFL-CIO; Sheet
Metal Workers International Association, AFL-CIO; Inter-
national Brotherhood of Boilermakers , Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO; and their
agents, System Division No. 87, The Order of Railroad Teleg-
raphers and Brotherhood of Maintenance of Way Employees
and B . B. McCormick and Sons , Inc. and Houdaille-Duval
Company and Blount Brothers Corporation, Charging Parties.
Cases Nos. 12-CC-284,12-CC-286, and 12-CC-287. December 16,
1964
DECISION AND ORDER
Upon charges filed on September 12 and 13, 1963, by B. B. Mc-
Cormick and Sons, Inc., Houdaille-Duval Company, and Blount
Brothers Corporation, herein collectively referred to as the Charging
Parties, the General Counsel for the National Labor Relations Board,
herein called the General Counsel, by the Regional Director for
Region 12, issued a complaint dated April 28, 1964, and amended on
May 11 and June 29, 1964, against International Brotherhood of
Electrical Workers, AFL-CIO; International Association of Ma-
chinists, AFL-CIO; Sheet Metal Workers International Association,
AFL-CIO; International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO; and their
agents , System Division No. 87, The Order of Railroad Telegraphers
and Brotherhood of Maintenance of Way Employees, herein collec-
150 NLRB No. 37.