Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1973

204 N.L.R.B. 78 (N.L.R.B. 1973)

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse Electric Corporation , Small Motors
Plant and International Union of Electrical Radio
and Machine Workers, AFL-CIO-CLC. Case 10-
CA-9689
June 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
employee to nondiscriminatory treatment.
The argument that the Respondent's justification
for the rule was insufficient is burdened by a similar
defect. Since the rule was not under attack, it required
no justification.
The nondiscriminatory enforcement of an unam-
biguous rule against union adherents is not an unfair
labor practice unless the rule itself is unlawful. As the
legality of the rule was not litigated, we shall dismiss
the complaint in its entirety.
ORDER
On January 23, 1973, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions with supporting briefs
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge solely to
the extent consistent with this Decision.
As more fully set forth in the Administrative Law
Judge's Decision, the facts of this case are relatively
simple. The Respondent is alleged to have violated
Section 8(a)(3) and (1) by enforcing an announced
policy prohibiting employees from reporting more
than 30 minutes before, or staying more than 30 min-
utes after, working time. The General Counsel stated
on the record that it was not attacking this rule, but
rather its application to employees distributing union
literature. The Respondent, in reliance on that state-
ment, rested its case and refrained from calling addi-
tional witnesses.
No independent unfair labor practices have been
alleged and there is nothing in the record which would
support a finding that union adherents were not treat-
ed in the same manner as other employees. The most
that can be said is that the rule was enforced for the
first time against employees distributing union litera-
ture. Patently, that is not enough.
That other employees occasionally sought and ob-
tained permission to be on the premises outside their
working hours is also unpersuasive. No such permis-
sion was requested here. Further, the assertion that
employees do not require their employer's permission
to exercise their rights under Section 7 demonstrates
a misconception of the right involved. The legality of
the rule was not litigated; therefore, the right at issue
is not employee access to an employer's premises for
organizational purposes, but rather the right of an
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
DECISION
I STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge: The issue
in this case is whether an employer violates Section 8(a)(1)
and (3) of the National Labor Relations Act,I herein called
the Act, by discriminately or nondiscriminately enforcing
plant rules and regulations dealing with the presence of
off-duty shift employees at an employee entrance of the
building where they are employed. Specifically, employees,
in a three-shift operation, were asked not to violate the plant
policy or rule which stated that employees were not to re-
port to the plant earlier than 30 minutes before their sched-
uled starting time to work and not to remain on the plant
property more than 30 minutes after their scheduled stop-
ping time, unless authorized. Disregarding these specific
instructions, five off-duty employees from the third shift,
whose work period ran from midnight to 8 a.m., joined two
off-duty employees of the second shift at approximately
3:35 p.m. at the employee entrance to the plant building for
the purpose of distributing union literature to second-shift
employees as they entered the plant for work beginning at
4 p.m. The employer disciplined these five employees (gave
each a 3-day layoff) for "Willful failure to carry out definite
instructions or assignments," a category set out in the em-
ployees' handbook.
The Union 2 charged 3 the Respondent Employer with a
violation of the Act, and the General Counsel of the Nation-
al Labor Relations Board, herein called the Board, issued a
complaint 4 alleging a violation of Section 8(a)(1) and (3) of
the Act by the 3-day disciplinary suspensions of the five
third-shift employees on the theory that an employer cannot
lawfully discipline its off-duty employees when all they were
doing was engaging in the distribution of union literature on
1 29 U S .C Sec 151, et seq
2 International Union of Electrical, Radio and Machine Workers, AFL-
CIO-CLC
3 Charge was filed July 20, 1972
4 Complaint issued by Walter C Phillips, Regional Director for Region 10
on August 29, 1972
204 NLRB No. 24
WESTINGHOUSE ELECTRIC CORP. 79
their own time on company property at the employee en-
trance to the plant building. The Respondent's plant rules
are not in issue nor is it alleged that the promulgation of the
30-minute rule violates the Act. Applying the rule to prohib-
it union activity is the gravamen of the complaint.
I find, for the reasons hereinafter set forth, that the Act
has not been violated and I will order the complaint dis-
missed in its entirety.
The trial of the case, under Section 10(b) of the Act, took
place in the McMinn County Courthouse, Athens, Tennes-
see, on October 17, 1972. Briefs were filed by the parties,
after a 10-day extention of time was granted to November
20, 1972, pursuant to request of the Union. The
Respondent's brief was timely filed on November 20, 1972,
whereas the briefs of the General Counsel and the Union
were untimely filed on November 21, 1972.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the brief of Respondent,5 I make the following:
FINDINGS AND CONCLUSIONS
11 JURISDICTION
Respondent , Westinghouse Electric Corporation, Small
Motors Plant , is a Pennsylvania corporation engaged in the
manufacture of electric motors and electric motor parts at
its plant and place of business at Athens , Tennessee. During
calendar year 1971, a representative period , Respondent
made , sold, and shipped its products, valued in excess of
$50,000 , directly to customers located outside the State of
Tennessee . I find Respondent has been and is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
I find that the Union , International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, has been
and is a labor organization within the meaning of Section
2(5) of the Act.
At approximately 3:45 Messrs. Jack Springer, Bob
Rich [manager of operations] and Jerry Crabtree ap-
proached the seven employees distributing the litera-
ture at the employee entrance. Mr. Crabtree asked
them if they understood Mr. Rich when he explained
the 30-minute plant rule and told them that he did not
want any employees to report to the plant prior to 30
minutes before the start of their shift and did not want
employees to remain on the property more than 30
minutes after the conclusion of the shift. Mr. Crabtree
went around to each of the seven employees and specif-
ically asked them if they understood what Mr. Rich
had told them relative to this rule and the possibility of
disciplinary action for infractions. They each, in turn,
indicated that they understood. Mr. Crabtree then told
the five third shift employees they were being given a
three-day disciplinary furlough effective immediately
and that this disciplinary furlough would cover their
Tuesday, Wednesday and Thursday shifts and they
would be expected to return to work on their regular
Friday, which would be Thursday night at midnight,
July 21, 1972. He further told the group that he wanted
the five third shift employees to leave the plant proper-
ty immediately . . . . Mr. Springer told the five third
shift employees that the three-day disciplinary furlough
would become a permanent part of their record and
Kathleen Holder indicated she understood this.
Kathleen Holder then spoke up and asked if it was all
right to distribute literature at the beginning of the
driveway which they in fact did. Both Mr. Springer and
Mr. Crabtree said that Barbara Faye Williams and Ray
Johnson, since they were second shift employees, could
distribute literature at the employee entrance, and in
fact, they did so.
The five third shift employees then left the plant pro-
perty and three of them were subsequently seen distri-
buting literature on Tellico Avenue at the plant road
entrance.
III THE ALLEGED UNFAIR LABOR PRACTICES
The facts are undisputed and those facts which directly
involve the incident giving rise to this case are stipulated to
as follows:
At approximately 3:35 p.m. on July 17, 1972, seven
hourly employees came to the employee entrance of the
Athens Motor Plant for the purpose of the distribution
of union literature to oncoming second shift employees
who begin their shift at 4:00 p.m. and to first shift
employees who leave at 4:00 p.m.
Included in the employees who showed up for the pur-
pose of distributing union literature were two second
shift employees, Barbara Faye Williams and Glen Ray
Johnson, and five third shift employees, Kathleen
Holder, Nettie E. Hyde, Margie Ann Watson, Reba
Shelton and Kenneth Torbett.
5 Reasons for not considering the briefs of the other parties arc set out in
the conclusion of this Decision.
Events Leading up to July 17, 1972
1. Prounion activity
The Union commenced its organizing activities on Febru-
ary 16, 1972, some 5 months before the events in question,
and such efforts had not ceased at the time of the trial.
Nonemployee Ted Nolan, international representative of
the Union, and non-Athens employee Maxwell 6 began the
organizing. They distributed some 14 separate distributions
of union literature at either one or both of the entrances to
the plant's parking lot. The pieces of literature were in ex-
cess of 50. They were not interfered with in any way.
Additionally, Nolan established headquarters at a local
motel where employees went to discuss union benefits. It
was "common knowledge" he was there. He also held gener-
al meetings with the employees at public meeting places
6 "Jim Maxwell is the President of IUE Local 724, representing the em-
ployees of the Westinghouse Electric Corporations plant in Lima, Ohio,"
according to Nolan.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including the courthouse, the library, and Gilbert's Hall. He
contacted employees at their homes to discuss union bene-
fits and visited them there "extensively." He used the mails
to contact the employees.
He created a plant union committee, which on July 17,
1972, was composed of five employees on the third shift, two
on the second shift, and two on the first shift. The composi-
tion of this committee had changed from time to time, but
at no time were there less than two members from each of
the three shifts, and the identity of the committee was made
known by listing them on distributed leaflets. Respondent's
counsel admitted that it was common knowledge as to who
was on the committee, and that Respondent knew the five
disciplined employees were members of the committee.
Through October 10, 1972, a week before the trial, 52
separate distributions of union literature had been made at
the plant. They were made: 1) by Nolan and Maxwell off
company property at the two entrances to the plant's park-
ing lot; 2) by on-duty employees in the nonproduction areas
on plant property such as the cafeteria, restrooms, and the
employee entrance to the plant; 3) by off-duty employees at
the employee entrance to the plant building but within the
30-minute policy, and 4) by off-duty employees off plant
property at the entrances to the parking lot at times when
the off-duty employees were outside the 30-minute policy.
2. Antiunion activity
During this same period of time, an antiunion campaign
among the employees began, and some 10 separate distribu-
tions of antiunion literature were made. They were made:
1) by on-duty employees on plant property in the same
nonproduction areas mentioned above; 2) by off-duty em-
ployees on plant property in the nonproduction areas but
always within the 30-minute period; and 3) by off-duty
employees outside of the 30-minute period off plant proper-
ty-
On June 14, 1972, employees Holder (one of the named
alleged discriminatees in the instant case) and Williams
came to the employee entrance to the plant shortly after
3:30 p.m. to distribute literature. This time was within the
30 minutes allowed for second-shift employee Williams, but
outside the 30 minutes for Holder who was on the third shift
which would not begin until midnight, over 8 hours away.
Nothing was said to Williams who continued to distribute
the literature, but Holder was warned that she was in viola-
tion of the 30-minute policy and was told she could distrib-
ute off plant property which she did. Based on the evidence
adduced at the trial, this violation of the 30-minute policy
was the first that had ever occurred in the plant's history.
pare for operations. A member of this team was J. V. Spring-
er, the present manager of employee relations, who, among
his other duties, prepared the looseleaf employee handbook
entitled, "You and Your Job at Westinghouse," which is in
evidence as General Counsel's Exhibit 2. The purpose of
this book was to make newly hired employees aware of the
"regulations and procedures which must be followed in our
Plant. All of these are designed to help make our plant a
safe , pleasant and desirable place to work." The book was
drafted in 1968 and printed in 1969, over 1 year before the
plant became operational. Each new employee was given a
copy of the book and each provision was reviewed with him
before he was placed on his job.
5. 30-minute policy
Among other rules and policies contained in the hand-
book is the 30-minute policy involved herein. It provides:
We want our operations to run smoothly, without con-
fusion that could result from people arriving too early
or staying too late. That is why you are asked not to
report to the Plant earlier than 30 minutes before your
scheduled starting time, and not to remain on the Plant
property more than 30 minutes after your scheduled
stopping time , unless you have been scheduled to work.
Springer testified without challenge that his primary con-
cerns in developing this policy were: the control of people
entering; potential exposure to wage and hour law liability;
potential exposure to workmen's compensation liability;
general third-party liability exposure ; safeguarding of
employee's property; and the obvious prevention of inter-
ference with production. As noted above, the General
Counsel does not contest the promulgation of the rule. The
General Counsel also specifically did not and does not at-
tack Respondent's "no-solicitation" rule in the handbook at
page F-9, Rules 1-12 and B-6.
The undisputed evidence of Respondent's sole witness,
Springer,8 is that the 30-minute policy was adhered to by
every employee in the plant since Respondent began opera-
tions in 1970, except for the Holder incident on June 14,
1972, and the July 17, 1972, incident involved herein. The
occasions when off-duty employees came on the property
outside the 30-minute period for work-related purposes
were specifically permitted by Respondent. The employees
knew they could apply for permission. The parties admit
that the first time the policy was invoked was at the time of
the Holder incident and the second time it was invoked was
at the July 17, 1972, incident, but there is no evidence that
at some earlier time the policy could have been invoked and
was not invoked.
6. The warning of the employees, June 20, 1972
4. Plant history
The plant commenced operations in 1970,' but before
that a start-up team began as early as August 1968 to pre-
7 At the time of the charge , there were approximately 425 hourly employees
on three shifts. Fifty to 60 percent of them live in Athens, a town of about
At meetings of each of the three shifts of employees on
June 20, 1972, the attention of all the employees was drawn
12,000 , and the remainder reside within a radius of 20 miles.
s The General Counsel called no witness of his own but rested his case on
the stipulation of the parties, noted above, the employee handbook , above,
the individual disciplinary reports given the five third-shift employees, the
alleged discnmmatees , and the formal papers. The Union called one witness,
Nolan, its international representative.
WESTINGHOUSE ELECTRIC CORP.
to the plant policy that employees were not to enter plant
property more than one-half hour before the start of their
shifts and should be off plant property within one-half hour
after their shifts end. Failure to observe this policy, they
were told, could result in disciplinary action. Other matters
were taken up at these shift meetings as set out in a memo-
randum admitted into evidence as Respondent's Exhibit 2.1
7. Torbett's statement and Respondent' s response
According to the stipulation of the parties, after Crabtree
told the five third shift employees to leave the plant property
immediately, because of their violation of the 30-minute
rule, employee "Kenneth Torbett then spoke up and said,
`do you know what the law says,' and Mr. Springer re-
sponded that he knew what the law said and we were admin-
istering the 3-day disciplinary furlough and they should
leave the property immediately."
The stipulation of the parties also noted that:
At 6 p.m. on July 17, 1972, Mr. Rich met with the
second shift employees in the plant cafeteria and ex-
plained to them the disciplinary action that had been
taken in view of the plant rules and regulations that had
been explained to all employees the preceding month.
Mr. Rich further explained that courts have ruled both
ways in this particular subject and we believe our rule
to be proper and administered it as we did because we
believed it to be proper. Mr. Rich met with the third
shift employees and the first shift employees on July 18,
1972, to explain to them what had happened.
9 The below items were discussed at plantwide meetings on each shift
1. April and May factory performance including the fact that we
billed in excess of $1 million in May and made $2400 profit
2 Everyone helping to maintain clean restrooms and cafeteria with
each person accepting the responsibility of cleaning the mess he or she
makes.
3. The loss of $10 and $20 in the plant by two employees through
thievery It was explained we thought we had screened out dishonest
employees , but we had evidently missed, and it would be prudent for
everyone to watch his personal valuables a little more closely
4 The loss of the fourth automobile off our parking lot indicates that
each employee should be sure to lock his car before coming in to work
In addition, we are planning to have a Burns Agency man as quickly as
possible to watch the parking lot around the clock for some indetermina-
ble period of time. [The guard was hired on June 20, 1972 Four cars had
been stolen from the company parking lot, on four different days, April
25, June 14, June 19, and June 20, 1972.)
5 Plant policy is for employees not to enter the plant more than
one-half hour before the start of their shift and [they] should be off the
plant property within one-half hour after the shift ends This is a plant
policy and procedure that is outlined in the employee handbook and has
been with us since the very beginning . Failure to observe this plant
policy could result in disciplinary action [One of the considerations for
placing this item on the agenda was the Holder incident on June 14,
19721
6 Employee picnic is set for July 15 Supervisors will be canvassing
each employee to determine the number of people expected to be in
attendance and whether they would prefer Knox Park or Meigs County,
where we had it last year. This year , we plan to have Burkett Witt
prepare the meat
7 Because of customer commitment , it has been necessary to work
overtime in an attempt to get the required number of motors since we
have not been able to get people into the plant as fast as we would like
Customer commitments always bring pressure and we certainly hope
that this pressure does not interfere with our ability to communicate with
each other and certainly does not affect the fine efforts and accomplish-
ments that we have achieved to date.
81
Analysis and Conclusions
The theory of the General Counsel is either: (1) a pure
theory that off-duty employees cannot be disciplined for
engaging in union activity (distributing prounion literature)
on their employer's property at the employee entrance to the
plant; or (2) the policy that the 30-minute policy or rule is
not under attack as a rule, but only its application is under
attack. With that understanding, it must be concluded that
the General Counsel's theory is (2), above, rather than (1),
because under the latter the mere promulgation of the rule
would have to be alleged as an unlawful interference with
Section 7 rights of employees.
The General Counsel has failed to establish by a prepon-
derance of the evidence that the 30-minute rule or policy
was discriminatonly applied. It is a fact that the first time
any disciplinary action was taken was on July 17, 1972, but
this is the first time any employees had failed to heed the
warning not to violate the rule, which warning was given on
June 20, 1972, to all employees. It is also clear that the
warning was given because of Holder's violation of the 30-
minute policy on June 14, 1972, when she was particularly
warned. It is also clear from this record that the General
Counsel did not establish by a preponderance of evidence
that Respondent permitted the 30-minute policy to be vio-
lated without warning or discipline until union activities
were involved. Just because union activities bring on the
first warning or discipline does not in itself establish a
discrimination in the application of the 30-minute policy.
The 3-day disciplinary layoff was made in accordance
with plant rule B-9, that all employees knew. I find it is
reasonable to believe the warnings given each of the three
shifts of employees on June 20, 1972, qualifies as "definite
instructions" within the meaning of the rule and each em-
ployee was put on notice to adhere to the rule. All employ-
ees obeyed but the disciplined five. Their disobedience must
be classified as "willful failure to carry out definite instruc-
tions" within the meaning of the rule.
The interesting question is why did these five employees
risk the possible 3 days off without pay, as called for by
plant rule B, on page F-9 of the employees' handbook. They
were definitely challenging the rule, and they did this delib-
erately. It is obvious that there was no need for the third-
shift employees to be distributing union literature in order
to get it in the hands of employees. The second-shift em-
ployees could and were distributing the literature. Appar-
ently prounion and antiunion literature was being made
available to all employees even inside the plant at the cafete-
ria, restrooms, and other nonworking areas by on-shift em-
ployees.
Counsel for the Union, in cross-examining witness
Springer, attempted without success to get Springer to admit
either that the 30-minute rule was not written for the distri-
bution of union literature or, in the alternative, was written
primarily with the distribution of union literature in mind
or was being applied only to the distribution of union litera-
ture. Springer's testimony, in effect, was that the rule had a
universal application.
Having in mind the facts that the Union's organizing
efforts had been going on for some 5 months with no success
in persuading a majority of employees to join up, that an-
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiunion efforts were also going on, that Holder had unsuc-
cessfully attempted to distribute union literature on June 14,
1972, and that all employees had been warned thereafter on
June 20, 1972, not to violate the 30-minute policy, I find the
Union changed its organizing strategy from one of rea-
soning to a strategy of action to directly attack the Employ-
er. If it could violate the Respondent's 30-minute rule that
had been recently brought to the attention of all employees
in a warning, without incurring disciplinary action therefor,
it could establish itself in power equal to the Respondent
and thereby prove to the employees that it could successful-
ly represent them in collective bargaining. This would give
a tremendous boost to the organizing campaign.
In order to win this action, the Union would have to: 1)
deliberately violate the rule and 2),,persuade the Respondent
not to discipline the employees therefor. If this did not
work, the Union could file a charge with the Board and
attempt to eliminate the rule insofar as distributing union
literature was concerned.
Therefore, when the five third-shift employees attempted
to distribute union literature on July 17, 1972, outside of the
30-minute rule, the main consideration in doing this was not
to solicit employees or get the literature in the hands of the
employees it was wooing (this was being done in other ways)
but rather it was to directly ignore and thereby challenge the
company,policy_and warning.
When the employees were being disciplined, employee
Torbett attempted to persuade Respondent not to discipline
them by asking the company officials if they knew what the
law was--smplying that the law was on the side of the five
third-shift employees. Unsuccessful in this effort, the Union
filed the charge resulting in this case. Therefore, just as
many employers use the fact that employees are dischargea-
ble for cause as a pretext for discharging them for their
protected concerted activities, the Union here used the dis-
tribution of union literature as a pretext for attacking the
authority of the employer to establish uniform nondiscrimi-
natory rules for the orderly operation of its business. The
rule in issue, it must be remembered. is ,not a "no-solicita-
tion rule," although admittedly when it was invoked it stop-
ped some solicitation but only that engaged in by
unauthorized employees. Solicitation by unauthorized em-
ployees continued and there is no evidence of real or meaai-
ingful interference with the Section 7 rights of the
employees.
The law of this case, on its own peculiar facts, is governed
by the discussion of the Supreme Courtin N.L.R.B. v. Bab-
cock & Wilcox Co., 351 U.S. 105, 112 (1956). The Supreme
Court said:
Organization rights are granted to workers by the same
authority, the National Government, that preserves
property rights. Accommodation between the two must
be obtained with as little distruction of one as is consis-
tent with the maintenance of the other. The employer
may not affirmatively interfere with organization; the
union may not always insist that the employer aid orga-
nization.
Finally, I find that Respondent's 30-minute policy was a
rule which regulated its property in clear and unmistakable
terms with respect to the rights of employees and it does not
infringe on those rights to a greater extent than necessitated
by legitimate employer interests in such matters as security,
traffic, and littering. (See Westinghouse Electric Corporation,
Tampa Division, 199 NLRB No. 101.)
Failure to Timely File Briefs
As noted earlier, the General Counsel and the Charging
Party failed to comply with the Board's Rules and Regula-
tions requiring briefs to be received at times specified. Ac-
cordingly, they are not made part of the record in this case.
Like the Company's rule in the instant case , the Board's
rules are issued to aid the orderly course of business and
compliance therewith is required. (See Colyer v. Skiffitgton,
265 F. 13, 48.) It has been said that had God wished a
permissive society he would have issued " 10 Suggestions."
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The alleged violations of the Act were not established
by a preponderance of the evidence.
THE REMEDY
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 10
The complaint is dismissed in its entirety.
10 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the Board , the findings, conclusions , and recom-
mended 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 purpos-
es.