Wayne Home Equipment Co.

National Labor Relations Board - Board Decisions

May 13, 1977

229 N.L.R.B. 654 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wayne Home Equipment Company, Inc. and Interna-
tional Union, Allied Industrial Workers of Ameri-
ca, AFL-CIO. Case 25-CA-8068
May 13, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 13, 1976, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of the Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusionsI of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Wayne Home
Equipment Company, Inc., Fort Wayne, Indiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: Pursuant to a
charge filed on July 6, 1976, and a complaint issued on
August 31, 1976, a hearing was held in this case at Fort
Wayne, Indiana, on September 20, 1976. At issue is
whether Respondent coercively interrogated an employee
on June 24, 1976; whether, in June 1976, Respondent kept
under surveillance and gave the impression of surveillance
of the union activities of its employees; whether Respon-
dent has maintained and enforced unlawful rules relating
to solicitation of support for unions and distribution of
literature in support of unions; and whether Respondent
unlawfully discharged Finley M. Lowe on June 25, 1976.
Briefs were received from the parties on or about
November 8, 1976.
Upon the entire record,' and after due consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Indiana corporation, is engaged in the
manufacture, sale, and distribution of pumps, components
for furnaces, and related products at its principal place of
business in Fort Wayne, Indiana. During the year preced-
ing issuance of the complaint, a representative period,
Respondent manufactured, sold, and distributed at its Fort
Wayne facility products valued in excess of $50,000 which
were shipped directly from such facility to States other
than the State of Indiana, and purchased, transferred, and
delivered to its Fort Wayne facility goods and materials
valued in excess of $50,000 which were transported directly
to such facility from States other than the State of Indiana.
The answer to the complaint concedes, and I find, that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
1. THE STATUS OF THE LABOR ORGANIZATION
The answer admits, and I find, that International Union,
Allied Industrial Workers of America, AFL-CIO, is, and
has been at all times material, a labor organization within
the meaning of Section 2(5) of the Act.
111. THE FACTUAL SETTING
Respondent manufactures oil burners, gas burners, water
pumps, and sump pumps. In June 1976, it employed about
280 hourly paid employees, who worked in adjoining
buildings separated by a street. Among the departments
maintained by Respondent is the service department,
which is responsible for repairing and reconditioning
equipment returned under warranty and equipment which
has been rejected during the production process. In June
1976 there were eight employees in that department. John
Mildred, conceded to be a supervisor, was in charge of the
service department. Also employed in the department was
Cecil Banks, a self-described "working group leader."
Finley Lowe, alleged here to be a discriminatee, was one of
the three pump repairmen in the service department.
Respondent's employees are not represented by a union,
although there has been in existence for some time an
employee-management committee, referred to as the
Council. Prior to June 1976, the company had been the
target of intermittent union campaigns. Richard Doak, the
plant manager, testified that various unions had been
Errors in the transcript have been noted and corrected.
229 NLRB No. 103
654
WAYNE HOME EQUIPMENT COMPANY, INC.
passing out literature for what "seems like for 18 months or
2 years." Around the beginning of 1976 the International
Union of Operating Engineers conducted an organization-
al campaign. That apparently died down and, probably in
June 1976, the Allied Industrial Workers began an
organizing effort.
When Finley Lowe heard about the campaign, he took
an active interest in it. Around June 9 or 10, Lowe signed a
card for the Union, given to him by fellow employee
William Cox, and began distributing cards to other
employees. By the time he was discharged on June 25,
Lowe had solicited, directly or indirectly, some 36
authorization cards, and had received 29 more cards from
Alonzo Jones, an employee to whom Lowe had given a
batch of cards.
Prior to April 1975, the employee manual in effect at the
plant listed 18 rules of conduct, as to which no differentia-
tion in terms of gravity was made. A general statement of
the penalties attaching to violations of the rules stated that
"customarily" a written warning notice would be issued for
a first violation, a second violation could result in an I-
week layoff, and, upon a third violation, the company
"shall have the right" to discharge an employee. One of the
rules listed was entitled "Solicitations," and it read as
follows:
Solicitation of employees and/or distribution of any
written or printed matter is not permitted on our
premises except by employees during their nonworking
time. [The exception does not permit the distribution of
written or printed matter in any working area.]
In April 1975, in conjunction with the employee
committee, management issued a new handbook with a
more elaborate system of rules and penalties. Two classes
of violations were established. The "Class I Violations"
were 17 in number. According to the system, for a violation
of a Class I rule, an employee "will be subject" to
immediate discharge "without warning." For the "Class II1
Violations," of which there were 21, employees would
receive graduated punishment. The more serious Class I
violations, including such items as deliberate falsification
of records, theft of property, provoking a fight, carrying
firearms, immoral conduct, etc., also included two provi-
sions relating to solicitation and distribution. Rule 13 reads
as follows:
Vending, soliciting or collecting contributions for any
purpose whatsoever at any time on the premises unless
authorized by the Management.
Rule 14 reads as follows:
Distributing written or printed matter of any descrip-
tion on Company premises unless approved by the
Management.
2 General Counsel suggests that the rules were in fact made more
stringent to combat the ongoing union activity. It might be noted that Class
I violation number 15, which proscnbes "immoral conduct or indecency."
could be considered to have embraced the pornography problem. It is also
of interest that while solicitation and distribution of all kinds without
Plant Manager Doak testified (albeit with less than
complete certainty) that the rules relating to solicitation
and distribution were "tightened up" because of a
proliferation of pornography passed out on company
premises.2
On June 16, Lowe solicited "working group leader"
Banks to sign a card; Banks did so. Banks testified that this
occurred while both he and Lowe were working in the
service department. Lowe denied that he had solicited
Banks or anyone else other than on his free time; as to
Banks, he said that the solicitation, "to the best of my
knowledge," was done at lunchtime. Lowe seemed a more
credible person than Banks, but I was not unimpressed
with Banks' demeanor. They both were somewhat shaky in
certain areas of testimony. Given the fact that, as Lowe
testified, he worked "side by side" with Banks, I am
somewhat doubtful about the likelihood that he waited
until lunchtime to propose that Banks sign a union card.
Either on June 16 or during the following week,
according to the mutually corroborative testimony of Lowe
and Banks, employee James Staker came into the service
department. There was talk about the Union, and Banks
suggested that Staker sign a card. Staker said he had
already signed one, but Banks, as Banks himself testified,
suggested that Staker sign another card. Staker did so and
handed the card to Lowe.
Around Friday, June 19, Service Department Manager
Mildred saw three employees from the service department
at a soft drink machine prior to their breaktime. He told
them to return to their work station. He also instructed
Banks to talk to all the service department employees
about leaving their work station prior to breaktime. Banks
did so.
Beginning the week of Monday, June 21, as Mildred
conceded, he spent more time in the service department
than he normally does. He explained his increased
attention as a product of his desire, spawned by the
incident of the preceding Friday, to see if employees were
leaving for their breaks or lunch periods earlier than they
were entitled to.
Probably on Wednesday, June 23, Mildred came into the
service department shortly before the afternoon break and
noticed that Lowe was absent. He asked Banks where
Lowe was, and Banks told him that he did not know. In
leaving the department, he noticed Lowe walking toward
the other building. He followed Lowe and, according to his
testimony, saw Lowe enter the work area of Alonzo Jones.
At that time the break whistle had sounded and Mildred
did not stage a confrontation with Lowe, but rather went to
see another supervisor in the building about some business.
He testified that he got involved in other matters and did
not return, as he had planned to do, to ascertain on what
errand Lowe was about in the other building.
permission were designated as Class I violations, such seemingly significant
conduct as "threatening intimidating, coercing or interfering with fellow
employees," "making false, vicious or malicious statements about any
employee, the Company or its products," and "Smoking in 'No SMOKING'
areas" were considered lesser offenses, and consigned to Class 11.
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early in the morning of Thursday, June 24, Banks talked
to Lynn Durnell, Respondent's production control manag-
er and an admitted supervisor. 3 Banks told Durnell that he
felt guilty about signing a union card and wanted to
confess to having done so. He further told Durnell that
Lowe had given him the card.
After work had begun on that Thursday, Mildred came
into the service department. The department is made up of
three separate rooms. It appears that Lowe's work station is
in the second room and that the third room is occupied by
employees William Cox and Jeff Happel. Mildred testified
that when he entered the room in which Cox and Happel
worked, he found those two present along with Lowe. He
says he saw Lowe about to hand to "another employee"
(his testimony is no more definite than this) a white card,
about 3 by 5 inches, with printing on it. Mildred said that
"upon observing me entering the room, Mr. Lowe quickly
withdrew the card and placed it back in his pocket."
According to Cox, Mildred told the employes to break it
Up. 4 Mildred said nothing to them about the white card.
Mildred testified that he thought that the "white card"
which he allegedly saw was a union card, but he "had no
proof at that time." Mildred then went back to his office to
look at the employee handbook. He recalled that "there
was a rule against passing out.printed matter. . . so I went
back to my office to refer to it." After reading rule 14 set
out above, he returned to the service department where he
encountered Cecil Banks. He testified that he asked Banks
if he had ever observed Lowe passing out "printed matter
during company time." Banks replied that "he had
observed and had received a union card from Mr. Lowe
during working hours." Banks further stated that he had
signed the card and returned it to Lowe.
Banks gave shifting testimony about whether Mildred
had in fact asked him if he was aware of any solicitation by
Lowe "on company time." At first Banks specifically
testified that he did not tell Mildred when he had signed
the card-" I didn't tell him what time it was or anything
like that ... I didn't say anything to him about [whether it
was during working time]. I just told him that I signed a
card, and had handed it back to him." On cross-examina-
tion, however, he recalled that Mildred had asked him if
the transaction had occurred "during working time," and
he said he had told Mildred "I think it was." Finally, Banks
testified that he was "really not sure that he asked me if it
was during working hours or not." 5 Since rule 14 itself
makes no reference to "company time," and since Mildred
admittedly had to make reference to the employee manual
to refresh himself as to the content of the rule, it seems
I I arrive at the date of June 24 on the following analysis. Banks signed
his card on Wednesday, June 16. He seemed quite positive that he talked to
Durnell on a Thursday, but he felt sure that it was not the Thursday
immediately following his signing of the card. He said that the confession to
Durnell was "quite a while" after he signed the card, and that he "waited a
while before I said anything to anybody." However, he also testified that he
talked to Durnell before Lowe was fired on June 25. Durnell testified that
Banks spoke to him early one morning at the timeclock when Durnell was
trying to catch three employees who were thought to be involved in a
conspiracy to punch the timecards of the others. Durnell did not give the
date of his conversation with Banks, but the record shows that the three
employees were discharged on Thursday, June 24. It seems likely, therefore,
that the conversation occurred on the latter Thursday.
unlikely that Mildred made any reference to "company
time."
Mildred further testified that Banks told him that he had
observed Lowe passing cards to "other people," but he
named only Jim Staker. Mildred did not testify as to
whether Banks had pinpointed the time, working or
nonworking, during which Lowe had handed a card to
Staker. Banks testified that he told Mildred about the
Staker incident but he did not "remember telling him when
it happened or not." Banks further testified that he told
Mildred about his own role in having Staker sign a second
card, which Mildred did not deny.
Mildred was himself possessed of the authority to
discharge Lowe, and he testified that, upon the facts he had
witnessed and ascertained, he thought that discharge was
necessary. However, "due to the fact that a union
organizing campaign was in effect in our company, I
thought it would be a rather sensitive matter," and he
decided to consult with Plant Manager Doak before taking
further action. He told Doak, after catching up with him in
the late afternoon, that he "had observed what I felt was a
violation, and I had had testimony and a witness testify
that the company rules, what we call our Class I violations,
one of them had been violated, and I thought that
disciplinary action was in order." Doak testified that
Mildred told him that he had seen Lowe attempt to pass
"printed material" earlier in the day, that Banks had said
to Mildred that he had been handed a union card by Lowe
"during working hours," and that Banks had said that
employee Staker had "come back to the department and
received a card." The two management officials decided
that Lowe should be terminated. Doak did not call in either
Lowe or Banks to verify the allegations made by Banks
about Lowe.
On the following day, June 25, Lowe was called into
Doak's office. Mildred was there. According to Lowe,
Doak told Lowe that he was going to give him the choice of
being discharged or of quitting. When Lowe asked the
reason, Doak said it was "for passing out printed
literature." Lowe asked about the nature of the literature,
and Doak replied that "it don't make any difference, as
long as it was printed literature." Lowe then asked about
the effect on his unemployment insurance and his pension
rights if he quit rather than be discharged, but got no
satisfactory answer. He decided to accept a discharge. In
discussing the basis for the discharge, Doak said, "I got
witnesses, but I am not going to impose on them. I am not
going to bring them out." Lowe denied that any reference
was made to his having distributed literature "during
working hours." Subsequently, however, he testified that he
' Mildred's testimony on this was not very certain. He testified as
follows:
I just told them to get back to their work stations. Just to get back to
work. They were already at their work stations. I don't remember
exactly what words I used.
Later, however, he testified that as he walked in through the door, the
employees "observed me, and dispersed."
I Banks' pretrial affidavit states that Mildred had asked if Lowe was
passing out printed literature "during working time," and that he had
replied that Lowe had given him a card "during working time."
656
WAYNE HOME EQUIPMENT COMPANY, INC.
told Doak, "I didn't pass out no literature during work
hours whatsoever." He then retracted his testimony, saying
that "nobody, as I recall," mentioned "working time during
that conversation between [him] and Mr. Doak." Mildred,
who professed great difficulty in recalling what was said 3
months before the hearing, testified, "I think Mr. Doak
said something about that he had been observed passing
out printed matter on company time, and I think he said, I
believe now if I recall, Mr. Doak was the one that said, 'We
have no choice but to dismiss you.' " Doak did not testify
about the discharge interview.
At the time of his discharge, Lowe had been employed
for slightly over 7 years. He had received a commendation
in each of those years for "excellent" attendance. On one
occasion he had been issued a written warning for not
punching out for the lunch break. Mildred described him
as a "relatively steady worker," but "slow."
IV. ANALYSIS AND CONCLUSIONS
A. The Unlawful No-Solicitation and No-
Distribution Rules
As stated above, Respondent has maintained at all
material times the following prohibitory rules, to which
sanctions attached:
13. Vending, soliciting or collecting contributions
for any purpose whatsoever at any time on the premises
unless authorized by the Management.
14. Distributing written or printed matter of any
description on Company premises unless aproved by
the Management.
Respondent purported to discharge Lowe for violation of
rule 14, and Respondent's brief addresses only the validity
of that rule. The brief concedes that rule 14 is "too broad."
It is equally obvious that rule 13, prohibiting solicitation
"at any time on the premises unless authorized by the
Management," presumptively abridges the right of employ-
ees to solicit for union support on their nonworking time.
No showing of any special circumstances justifying the
breadth of the two rules was offered. I find that by
maintaining, since on or about January 6, 1976,6 the
foregoing rules, Respondent has violated Section 8(a)(l) of
the Act. Republic Aviation Corporation v. N.LR.B., 324 U.S.
793 (1945); Stoddard-Quirk Manufacturing Co., 138 NLRB
615 (1962); Yellow Cab, Inc., 210 NLRB 568 (1974).
B. The Discharge of Finley Lowe
Respondent relied on Lowe's alleged violations of rule
14, the no-distribution rule, as the basis for his discharge.
In common acceptation, an employee's efforts to obtain
signatures on union authorization cards are considered
solicitation, rather than distribution of printed matter, but
the label applied is a matter of indifference to the issues
presented here.
In Daylin, Inc., Discount Division d/b/a Miller's Discount
Dept. Stores, 198 NLRB 281 (1972), the Board discussed
the principles relevant here:
The Chairman's dissent is based on a misconception
of the statutory right of employees to engage in union
solicitation at their place of work. The Act establishes
and protects their right to so engage, even during
working time, so long as there is no interference with
production. Only a substantial business justification,
such as a genuine interference with the progress of the
work, justifies any restriction on this right of solicita-
tion. A no-solicitation rule is presumptively, and only
presumptively, valid if it is limited to prohibiting
solicitation during the time an employee is expected to
be working and not during breaktime, lunchtime, or the
like.2 Such a rule is valid because it is presumed to be
directed toward, and to have the effect of, preventing
interference with production.
But where a no-solicitation rule goes beyond these
limits, as the present one does, it is an unlawful
infringement upon the employees' freedom to solicit
their fellow employees for (or against) union represen-
tation. The rule in such case can provide no justifica-
tion for the discharge of an employee who violated it.
Therefore, if an employee is discharged for soliciting in
violation of an unlawful rule, the discharge also is
unlawful unless the employer can establish that the
solicitation interfered with the employee's own work or
that of other employees, and that this rather than
violation of the rule was the reason for the discharge.
As we noted above, no such interference is shown here.
Thus the employee has been discharged for engaging in
an activity protected by the Act, and the violation is
plain. Enforcement of an unlawful rule in this manner
is, of course, a separate further interference with
employee rights.
2 Where it could be shown from the characteristics of the work that
union solicitation during worktime would in no way interfere with
performance of the work, for example, Lil Abner's mattress-testing job,
a no-solicitation rule of any kind would be invalid.
The Chairman's view appears to be that, because the
employer may in a presumptively valid way limit
solicitation, there can be no interference with employ-
ees' rights by discharging them for soliciting on
worktime. The correct view, however, is that any
prohibition of solicitation, by rule or discipline,
interferes with employee rights, and that such interfer-
ence must-in the absence of a valid rule-be support-
ed by an affirmative showing of impairment of
production. Reliance on an invalid rule is, of course, no
such showing.
Thus, where the employer has in effect no valid rule
prohibiting solicitation, he can justify a discharge grounded
on the invalid rule only by a showing that there was
"genuine interference with the progress of the work" and
"that [the interference] rather than violation of the rule was
the reason for the discharge." Pretermitting the question of
6 A date mandated by Sec. 10(b) of the Act.
657
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"genuine interference," and giving Respondent the benefit
of the doubt on other issues at present, it is apparent that
Lowe was not discharged because of any such claimed
interference, but rather that "violation of the rule was the
reason for the discharge." While Mildred testified that the
conversation between Lowe, Cox, and Happel, which he
witnessed on June 24, was "obviously disrupting produc-
tion," there was no basis for such a conclusion-he was
only present for, as he put it, "a matter of seconds" and, as
he conceded, "the other two [Cox and Happel] weren't
really away from their work stations." 7 According to both
Mildred's and Banks' accounts of their June 24 discussion
about other solicitations by Lowe, Mildred could not
reasonably have had any basis for believing that there had
been "genuine" interference with production. That Mil-
dred was more interested in enforcing the rule than in
protecting the production process is indicated by his
testimony that, after he broke in on the discussion between
Lowe and the other two men, he returned to his office to
ascertain whether there was a "rule against passing out
printed matter. I believe that there was that rule, so I went
back to my office to refer to it." Mildred further testified
that he recommended dismissal of Lowe "for violation of
that work rule." Mildred also gave the following testimony:
Q. (By Mr. Winkler) You considered that a serious
violation, passing printed matter?
A. I consider any violation of our rules a serious
violation. I don't make up the rules. My job is just to
enforce them, and if the rule calls for a dismissal, then it
is not within really within my ...
Q. You enforce the rules as you seen them?
A. Yes sir.
It thus appears from the foregoing that "it was the
invalid no-distribution rule, not a decision by management
that this distribution was interfering with legitimate
business or property interests, that was being enforced."
Yellow Cab, Inc., 210 NLRB 568, 569 (1974).
Furthermore, again construing the evidence most favor-
ably to Respondent, there was no basis for Mildred to
conclude that there had been any "genuine interference"
with production by Lowe. He testified that he saw Lowe
begin to hand a card to one of the other employees, but he
could not testify that it was a union card and at best the
transfer would have taken a few seconds. He said that,
when he questioned Banks about other incidents, Banks
told him that he had received and signed a union card from
Lowe "during working hours." In Essex International, Inc.,
211 NLRB 749, 750 (1974), the Board held that that term
"is reasonably calculated to" refer to a period encompass-
ing the time at which employees begin their work shift until
the time they end their work shift, including their free time.
There was no reason for Mildred to give Banks' statement
other than such a "reasonable" construction. As to the card
handed to Staker by Lowe upon the suggestion of Banks,
Mildred did not testify that Banks told him when the
transaction occurred, and Banks testified that he did not
I In fact. Lowe was only one room away from his work station, and his
duties often take him into the room in which Mildred found him.
s This is the rationale, "cast in terms of orthodox labor law," on which
the Court of Appeals for the Sixth Circuit based its affirmance of the
"know if I remember telling him when it happened or not,
but I told him it happened." Thus, there was no reasonable
basis for Mildred to believe that Lowe had caused any
substantial impediment of production.
But even assuming that Lowe gave a card to Banks on
working time, gave a card to Staker on working time, and
was about to hand a card to Cox or Happel on working
time, the Board, in applying Miller's Discount Dept. Stores,
supra, has held that such transitory incidents do not
constitute "genuine interference." Boaz Spinning Company,
Inc., 210 NLRB 1078, 1081, 1082 (1974) (employee had
gone to three working employees and discussed the union
and invited them to a meeting); The Singer Company, 220
NLRB 1179 (1975) (one employee "distributed the pam-
phlets in a working area during breaktime" and another
"distributed the literature in a working area during working
time").
Thus far, I have limited my analysis to the rather narrow
confines which I conceive to be appropriate under the
Board's analytical approach to discipline based on invalid
rules set out in Miller's Discount Dept. Stores. However, it is
well established that, even in the presence of a valid rule,
such discipline may be held violative of Section 8(a)(3) if
the record shows that the real reason for the discipline was
the nature of the activity rather than the violation of the
rule. Where the employer invokes the rule to thwart union
organization rather than to serve legitimate business
considerations, such conduct is, of course, violative of the
Act. Montgomery Ward & Co., Incorporated, 202 NLRB
978, 979 (1973); Hanes Hosiery, Inc., 219 NLRB 338
(1975). 8 I am fully convinced by the record that the
discharge of Lowe was actuated by illicit considerations.
My assessment of the evidence leads me to believe that
Mildred did not, on June 24, stumble onto an act of
solicitation. Production Control Manager Durnell testified
that, in the early morning of June 24, Banks, expressing
guilt, told him that he had signed a union card at Lowe's
behest. According to Durnell, he asked Banks to secure a
card for him, but he testified that he did not tell Doak or
any other member of management about Banks' confes-
sion. I do not believe Durnell. He admitted that he asked
Banks to get him a card because he "thought it was in the
interest of the company to know that there was any
soliciting going on in the company of any kind, or whether
a union was trying to organize again." It is simply
inconceivable to me that Durnell, possessed of such
loyalty, did not immediately notify other management
representatives of the conduct reported to him by Banks.9
It was this information, I infer, that caused Mildred later
that day to fabricate a pretext for institution of an inquiry
into Lowe's solicitation activities. I disbelieve Mildred's
testimony that he saw Lowe about to hand a card, which he
suspected to be a union card, to Cox or Happel. Lowe and
Cox denied that any such conduct had occurred; Happel
did not testify. Lowe appeared to be an honest witness, but
he had, of course, a private interest to serve in this
proceeding. Cox apparently had none, and he was a most
Board's order in Miller's. The court expressly reserved judgment on the
Board's analysis quoted supra. 496 F.2d 484, 489, fn. 3 (1974).
9 Doak seemed to recall some sort of conversation with Durnell about
the organizing effort, but could remember no details.
658
WAYNE HOME EQUIPMENT COMPANY, INC.
impressive man. The record shows that, in fact, Cox had
been the one who had brought to the attention of Lowe
that the AIW was organizing, and Cox gave some cards to
Lowe around June 9 or 10. Cox signed a card himself
thereafter, although he could not recall when. Lowe
testified that around the middle of June, on two different
occasions, he gave cards to Happel so that Happel could
solicit signatures. It seems quite unlikely, therefore, that, on
June 24, Lowe would have been handing "a card" to Cox
or Happel. I credit the testimony of General Counsel's
witnesses that no such attempted transfer of a card
occurred on June 24.
Mildred, however, needed some such incident in order to
rationalize his then talking to Banks about whether he had
ever seen Lowe solicit for the Union, a fact which, I have
concluded, Mildred had already learned from Durnell.
Based on the scant information given him by Banks,
Mildred then presented the case to Doak, who agreed that
summary discharge was mandated.
The record contains further support for my conclusion
that the discharge was improperly motivated. It is settled
law that an inference of unlawful motive may be derived
from disparate treatment accorded employees found to
have engaged in union solicitation and those whose other
nonproductive use of working time has gone unchallenged.
Alberts, Inc., 213 NLRB 686 (1974); Ling Products
Company, Inc., 212 NLRB 152 (1974); State Chemical
Company, 166 NLRB 455 (1967); N.L R.B. v. Daylin, Inc.,
supra. Palpable evidence of discrimination exists here.
I shall pass over the United Fund collections performed
by employees on working time and similar collections for
needy or retiring employees, known to and permitted by
management. It has been held that isolated "beneficent
acts fall far short of establishing forbidden discrimination,"
Serv-Air, Inc. v. N.LR.B., 395 F.2d 557, 560 (C.A. 10,
1968).10 Accord: The May Department Stores Company,
d/b/a Famous-Barr Company, 174 NLRB 770 (1969);
Astronautics Corporation of America, 164 NLRB 623 (1967).
Aside from the foregoing activities, however, there had
been less humanitarian employee use of worktime for
nonwork purposes. Avon representatives have solicited and
sold freely, and Doak conceded that he has seen Avon
literature in the plant; although no management represen-
tative admitted to knowledge of such transactions on
working time, it seems inconceivable that they would have
been completely unnoticed by the supervisory staff.
Mildred knew of the "check pool" gambling which had
been popular when he was an hourly employee and which
"may have been" conducted on worktime. Although
Mildred testified that he had not observed check pool
collecting by employees since he became part of manage-
ment, it is difficult to imagine that management representa-
tives were not aware of it. Cf. Ling Products Company, Inc.,
0O While the Board, upon remand in Serv-Air, accepted the court's
position, it noted that "we do not understand the court of appeals' decision
as meaning that a finding of discriminatory application would not be
justified even if numerous solicitations for various and sundry social and
charitable purposes were allowed, but only as concluding that disparate
treatment was not established by the quantum of such incidents shown by
the record before it." 175 NLRB 801, 802, fn. 3 (1969).
"i Although there was testimony as to a rather elaborate system of voting
212 NLRB 152 (1974) ("it is hard to envision Weber's not
being aware of this activity.")"x
Lowe testified that he had bought a gun from Doak
himself, with Banks as an intermediary, most aspects of the
transaction apparently having occurred on working time.
Cox credibly testified to a similar occurrence when Banks
had attempted, as Doak's agent, to sell a target bow
belonging to Doak; Cox found a prospective buyer for the
bow; Doak brought the bow to Cox in the service
department; Cox gave a check to Banks to give to Doak;
and Banks gave the check to Doak, all or most of which, as
Cox recalled, occurred during working time.
More directly in point is Lowe's testimony, which I
credit, that at a meeting of the Council in January 1976 the
employees were told that management could not bargain
with them while the IUE was organizing. An employee
suggested that a petition be circulated in which the
employees would indicate that they did not want to be
represented by an outside union. Lowe, a member of the
Council, testified that he raised a question as to possible
supervisory objection to members of the Council going
around the plant during worktime and securing signatures
on the petitions. One of the management officials stated,
"Tell them it is committee business." Thereafter, Lowe
collected 23 signatures on the petition, mostly during
worktime, and the other committee members similarly
collected such signatures.
Also closely apposite is an incident which occurred I
week before Lowe was discharged. Mildred testified that he
saw three service department employees at a soft drink
machine prior to lunchtime. He told them to return to their
work station. Although such conduct clearly violates at
least two of the "Class II Violations," rule 4 ("Wasting
time, loafing or taking more time than permissible during
break periods and lunch periods") and rule 10 ("Leaving
the work station or Company property during working
hours without prior permission from Supervisor"), Mildred
did not rush to his rule book or issue the written warning
which appears to be mandatory under the penalty system
for Class II violations ("For violations occurring within the
group of Class II rules, the following points will be charged
to the employee's personal record: Ist Violation I point (a
written warning will be given)"). In attempting to explain
his failure to do so, Mildred offered a melange of excuses:
there is some "misunderstanding" about when employees
can leave their stations, it is possible that the employees
could not hear the whistle in their location, the clocks are
not always right, "there is a lot of extenuating circumstanc-
es," and they "might not have realized what time it was or
not quite understood the rules." But Mildred admitted that
the employees had offered no such explanations and he
apparently had not asked them why they were taking an
early break; he simply ordered them to return to work.
While Mildred testified that he gave these employees "the
for employee members of the Council, involving both a primary and general
election on working time, this may well be viewed as falling into the
classification of "beneficent" activity, implicating as it does an established
arrangement presumably benefiting all the employees. But cf. The Contract
Knitter, Inc.. 220 NLRB 558 (1975), where a finding of disparate
enforcement was based on the employer's toleration of solicitation for an
employee committee during working time.
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefit of the doubt," he gave no convincing explanation of
why he did not give Lowe that same benefit, since, prior to
Lowe's discharge, he was not asked whether he "under-
stood the rules," he was not asked whether Banks'
accusations were true, and he was not given the name of his
accuser.12
In this connection, the disparate treatment of Banks is
particularly interesting. According to Mildred, Banks told
him that he had signed a card during working time. Banks
testified that he also told Mildred that, when employee
Staker had come into the department, he, Banks, had
suggested that Staker sign a second card. However,
although Mildred thus had reason to believe that Banks as
well as Lowe had participated in unauthorized solicitation
on worktime, no discipline at all was meted out to Banks.
Although Mildred testified that he considers "any violation
of our rules a serious violation," Banks, who informed on
Lowe, came out of the incident unscathed. The answer to
the discrepancy undoubtedly lies in Doak's admission that
"I will have to say that probably somebody has mentioned
there are suspicioned individuals" thought to have engaged
in union activity in the past and that he was "sure" that
Lowe's "name would have been brought up" in connection
with his prounion bent prior to June 1976.
As described above, the record discloses a fair amount of
tolerance of nonproductive activity by employees on
working time. Viewing the evidence in a light most
charitable to Respondent, it shows that when Lowe, an
employee with over 7 years' tenure, was discharged, the
evidence of Lowe's derelictions known to Respondent was,
at best, that: (I) Lowe had been seen attempting to hand
an unidentified card to another employee on working time,
an incident which could only have taken a few seconds; (2)
Mildred had been told by Banks that Lowe had handed
him a card "during working hours," which did not clearly
establish that Lowe had done so on "working time"; and
(3) Banks had told Mildred that Lowe had given a card to
employee Staker but had not indicated whether or not this
had occurred on Lowe's free time. Against the background
of relative latitude toward employee use of working time
for nonwork activity, the harsh penalty exacted in Lowe's
case-the industrial equivalent of capital punishment-
must be viewed as attributable to the nature of Lowe's
activities, rather than to the time consumed by them.
It is of further significance that after calling Lowe in on
June 25 and telling him, according to Lowe's credited
testimony, that he was being terminated for passing out
literature and that Respondent had witnesses but that it
was not going to identify them, Doak said, according to
Mildred, "We have no choice but to dismiss you." That is a
highly questionable reading of the penalty system. It
provides, "For violations occurring within the group of
Class I rules, an employee will be subject to immediate
discharge WITHOUT WARNING." The rule does not require
an immediate discharge, but only makes an employee
"subject to" such punishment.'3 The record shows that this
was the first occasion on which an employee had been
discharged for violation of the no-distribution rule.
12 Mildred testified that Lowe, "having worked with these rules . . .
should . . . know them very well." But Mildred, a supervisor, admittedly
had to consult the rule book himself.
Respondent's conduct here, viewed in total context,
inexorably gives rise to an inference that it was motivated
to discharge Lowe because he was organizing for the
Union, and not because of any legitimate concerns. The
analysis employed in Gooch Packing, Inc., 187 NLRB 351,
355 (1970), is apt: "[O]n the basis of hearsay and without
any warning, Peeples summarily discharged Villalovos, an
employee with an unblemished work record . .. The
celerity with which Peeples acted on Lomas' uncorroborat-
ed allegation in effecting the immediate discharge of
Villalovos, an employee with a satisfactory work record,
for a single alleged breach of the no-solicitation rule is in
sharp contrast with the treatment accorded Lomas, several
months earlier, for admitted thievery on the job." And the
incredulity expressed by the court in N.LRB. v. Daylin,
Inc., supra at 488, might well have been provoked by the
facts of the instant case: "Yet the manager gave no
warning about violation of the company rule and there was
no consideration of any lesser penalty. We find it difficult
to believe that if management had ever seen fit to enforce
its no-solicitation rule prior to November 25, 1970, it would
have employed automatic discharge for an otherwise
satisfactory employee who committed the first offense of
soliciting for a charitable bake sale."
I find, in sum, that the discharge of Finley Lowe on June
25, 1976, was inspired by a desire to frustrate his organizing
activities on behalf of the Union and not by any proper
business considerations. The Contract Knitter, Inc., supra,
Hanes Hosiery, Inc., supra; Mitsubishi Aircraft International,
Inc., 212 NLRB 856 (1974); Gooch Packing, Inc., supra. I
would reach the same conclusion even if I were in error in
inferring, as I have, that Mildred was told by Durnell what
Durnell had learned from Banks on the morning of June
24, and even if I err in my determination that Mildred did
not see Lowe attempt to hand a card to another employee
later that day.
C. The Alleged Interrogation of June 24, 1976
The complaint alleges that Respondent, by Service
Department Manager Mildred, "interrogated its employees
concerning their own and other employees' Union mem-
bership, activities, and desires at its facility" on June 24,
1976. That allegation, it develops, refers to the question put
by Mildred to Cecil Banks about whether he had seen
Lowe distributing any printed literature.
Curiously, the complaint alleges, and the answer denies,
that Banks is a supervisor within the meaning of Section
2(11) of the Act, and General Counsel made an effort to
establish that status at the hearing. In his brief, General
Counsel describes Banks as a "first line supervisor." In its
brief, Respondent argues that Banks is not a supervisor.
General Counsel cites no case for the proposition that
questioning a supervisor about whether he has seen an
employee hand out "printed matter" or "union cards"
tends to interfere with employee rights guaranteed by
Section 7. I see no useful analogy in those cases holding
13 At the hearing, counsel for Respondent phrased a question to Doak as
follows: "And a Class I violation calls for discharge, is that right, or it can
call for discharge, is that correct?" Doak answered affirmatively.
660
WAYNE HOME EQUIPMENT COMPANY, INC.
that, in particular circumstances, discipline of supervisors
may interfere with employee rights, 14 nor does General
Counsel rely on that line of cases.
It does appear to me that Banks is a statutory supervisor.
He assigns work to the service department employees; he is
the person chiefly in charge of the service department
during most of the day; he has, according to Mildred,
"authority to bring a situation to my attention" if he
believes that discipline is in order, and, depending on the
situation, Mildred may accept without question Banks'
report on the facts; he is authorized, according to Banks, to
sign warning slips if Mildred agrees that they should be
issued; in his prior job, as supervisor on the sump pump
line, he had an office and a desk and would discuss with
employees their attendance problems; he has orally
reprimanded employees for leaving for breaks prior to the
scheduled time; and when Mildred caught the three
employees at the soft drink machine on June 18, he
instructed Banks to announce to the employees that they
should refrain from such activity, which Banks did (he told
the employees that Mildred was "riding my back about
them quitting early, and I would like to see it stopped").
Although Banks did sign a union card, the "guilt" which he
admittedly felt about that action, causing him to talk to
Durnell, strongly bespeaks an ultimate feeling of loyalty
toward the management side.
Even if interrogating, a supervisor might, depending on
the facts, be a violation of the Act. The question put by
Mildred to Banks, as to whether he had seen an employee
passing out printed matter, would not seem to fall within
that category. Accordingly, I recommend dismissal of this
allegation of the complaint.
D. The Alleged Surveillance and Impression of
Surveillance
The complaint alleges that Mildred, on June 21, 23, 24,
and 25, both kept under surveillance the union activities of
the employees and gave the employees the impression that
they were the object of such surveillance.
Lowe testified that prior to June 21 Mildred's normal
routine was to appear in the service department "usually"
three times a day for perhaps 10 to 15 minutes at a time.
Beginning on the date named, "everytime I turned around,
John Mildred was there." Cox testified more temperately
that for about "a week to a week and one-half"' prior to
Lowe's discharge, Mildred was "down there more often
than he was, than he normally had been." Mildred agreed
that he appeared in the service department more often
during the week beginning June 21 than was normal for
him. He explained his increased frequency of appearance
as a reaction to his having found employees leaving early
for breaks on the preceding Friday, June 18: "I was
suspicious or had reason to believe that people were
leaving early for breaks within my department. I sort of
14 E.g.. Talladega Cotton Factory, Inc.. 106 NLRB 295 (1953); Better
Monkey Grip Company, 115 N LRB 1170 ( 1956): Ebasco Services, Incorporat -
ed. 181 NLRB 768 (1970).
'5 The testimony is as follows:
Q. Now. at the present time, does Mr. Mildred still show up as
often in the, in your department as he did before the termination of Mr.
Lowe?
made a point of coming down during the break time for a
couple of days just to, right before the break time, to sort of
keep my eye on the situation."
Although there is ample ground for suspicion that
Respondent was aware of Lowe's energetic support of the
union organizing campaign prior to June 24, there is no
firm evidence of that fact. Lowe's testimony that Mildred
was present beginning June 21 "everytime I turned
around" is more dramatic than Cox's testimony that
Mildred was "down there more often ... than he normally
had been." The reason given by Mildred for increasing his
visits to the department is a rational one. Although General
Counsel argues on brief that Cox testified that "after the
discharge of Lowe, Mildred returned to his normal routine
of 2 or 3 visits daily to the service department," Cox's
testimony does not so clearly pinpoint the time at which
Mildred resumed his former habits.'5
In all, I do not believe that I can properly attribute
Mildred's more frequent visits to the service department
beginning around June 21 to a desire to keep the union
activities of the employees under surveillance or to give
them the impression that such activities were under
surveillance.
The following incident is also alleged to constitute
unlawful surveillance. Probably on Wednesday, June 23,
Mildred followed Lowe to the building across the street
where Lowe had gone to get some parts. Mildred explained
this as part of his effort to police the attendance of the
employees. He explained that he had been in the service
department shortly before breaktime, had seen that Lowe
was not present, had asked Banks where Lowe was, had
received no satisfactory explanation, had gone out into the
hall and noticed Lowe going toward the other building,
and had decided to follow him to see whether he was
leaving early on a break or was performing his duties.?
Lowe confirmed that this incident occurred shortly before
breaktime. While I am suspicious about this episode, I
again will accept Mildred's explanation for his behavior.
Finally, there is the occasion on June 24 when Mildred
entered the room in which Lowe, Cox, and Happel were
present. By this time, as I have indicated above, it is my
belief that Mildred had become aware of Lowe's solicita-
tion activities. I cannot say, however, that his merely
entering one of the rooms of the service department, which
he managed, an act which he engaged in as a matter of
routine several times every day, can be construed to
constitute illegal surveillance of the union activities of
employees. It is possible that somewhere in Mildred's
subconscious mind he entertained the possibility of
catching Lowe in the act of engaging in union activities,
but that prospect could not have seemed very bright at the
time. I shall therefore recommend dismissal of this
allegation.
A. Well, there again, this varies. John is in and out. It is, I would
say it is kind of back to normal, really. You know, maybe two, maybe
three times a day, depending on what John has to do.
1i Lowe would periodically go to the other building to obtain spare parts.
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Wayne Home Equipment Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2) and (6) of the Act.
2. International Union, Allied Industrial Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Finley Lowe on June 25, 1976,
Respondent violated Section 8(a)(3) and (I) of the Act.
4. By maintaining and enforcing invalid no-solicitation
and no-distribution rules, Respondent violated Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has committed no unfair labor practices
alleged in the complaint except as set out above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Finley Lowe on June 25, 1976, I shall recommend that
Respondent be required to offer him immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejduice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
normally would have earned from the aforesaid date of his
termination to the date of Respondent's offer of reinstate-
ment, less net earnings during such period, computed in
accordance with F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
I shall also recommend that Respondent be restrained
from maintaining unlawful no-solicitation and no-distribu-
tion rules. Finally, I shall recommend that the customary
notices to employees be posted.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 17
The Respondent, Wayne Home Equipment Company,
Inc., Fort Wayne, Indiana, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to their hire, tenure of employment, or
other terms and conditions of employment in order to
discourage membership in International Union, Allied
Industrial Workers of America, AFL-CIO, or any other
labor organization.
(b) Promulgating, maintaining, enforcing, or applying
any rule or regulation prohibiting its employees, when they
are on nonworking time, from distributing handbills or
similar literature on behalf of any labor organization in
nonworking areas of Respondent's premises, or discrimina-
torily enforcing any otherwise valid rule pertaining to such
activity.
(c) Promulgating, maintaining, enforcing, or applying
any rule or regulation prohibiting its employees, when they
are on nonworking time, from soliciting other employees to
support the International Union, Allied Industrial Workers
of America, AFL-CIO, or any other labor organization, or
discriminatorily enforcing any otherwise valid rule pertain-
ing to such activity.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Finley Lowe immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make him whole in the manner described in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(c) Post at its Fort Wayne, Indiana, facility copies of the
attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the
complaint be dismissed except insofar as specific findings
of violations based on those allegations have been made
above.
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
18 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
662
WAYNE HOME EQUIPMENT COMPANY, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present testimony, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and has ordered us to post this notice.
WE WILL NOT discharge or otherwise discriminate
against any employee in regard to his hire, tenure of
employment, or any term or condition of employment
in order to discourage membership in International
Union, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization.
WE WILL NOT promulgate, maintain, enforce, or
apply any rule or regulation prohibiting our employees,
when they are on nonworking time, from distributing
handbills or similar literature on behalf of any labor
organization in nonworking areas of our premises, or
prohibiting employees, during nonworking time, from
soliciting their fellow employees to join or support any
labor organization, or discriminatorily enforce any
otherwise valid rule pertaining to such activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights under Section 7 of the National Labor Relations
Act.
WE WILL offer to Finley Lowe immediate reinstate-
ment to his former job or, if such job no longer exists,
to a substantially equivalent job, without prejudice to
his seniority and other rights and privileges, and WE
WILL make him whole for any loss of earnings he may
have suffered by reason of our unlawful discrimination
against him.
WAYNE HOME EQUIPMENT
COMPANY, INC.
663