Salyer Stay Ready Filter Corp.

National Labor Relations Board - Board Decisions

Apr 19, 1962

136 N.L.R.B. 1210 (N.L.R.B. 1962)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
the Employer is a member of Cascade and makes health and welfare
contributions to it, he has never participated in, or has been bound
by, multiemployer bargaining negotiations, nor has he unequivocally
indicated an intent to do so. In fact, the Employer has never bar-
gained individually with any union nor signed a collective-bargaining
contract covering his carpenters, the employees involved in the repre-
sentation proceedings before the State Board. Under these circum-
stances, as the Employer has not had bargaining relations with any
union and as he has not participated in collective bargaining on a
multiemployer basis nor unequivocally indicated an intent so to be
bound, he cannot be considered with the other Cascade members as
a single employer for jurisdictional purposes, but rather must be con-
sidered separately, on his own. Siemons Mailing Service, supra;
Earl Gordon, d/b/a Gordon Electric Company, 123 NLRB 862; cf.
Miami Marble d Tile Company, 132 NLRB 844. Therefore, in deter-
mining not to assert jurisdiction herein, the Board has taken into con-
sideration only the jurisdictional facts pertaining to the Employer
alone and not the interstate commerce data of the other Cascade
members.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, that, on the facts submitted,
because the commerce operations of the Employer do not meet the
Board's standards for asserting jurisdiction over retail or nonretail
enterprises and because the Employer and Cascade are not considered
to be a single employer for jurisdictional purposes, the Board would
not assert jurisdiction over the Employer's operations with respect to
disputes cognizable under Sections 8, 9, or 10 of the Act.
beyond the foundation stages , would have increased the Employer 's annual inflow to
more than $ 50,000.
Salyer Stay Ready Filter Corp . and Lodge 850, International
Association of Machinists , AFL-CIO. Case No. 16-CA-1493.
April 19, 1962
DECISION AND ORDER
On January 9, 1962, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached here-
to. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief. The Respondent filed a brief
in support of the Intermediate Report.
136 NLRB No. 116.
SALYER STAY READY FILTER CORP. 1211
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with the case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Inter-
mediate Report, and the entire record in this case, including the ex-
ceptions and the briefs, and hereby adopts the findings, conclusions
and recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH dissenting :
I must disagree with the conclusion of my colleagues that the Re-
spondent's conduct here was lawful.
As the Trial Examiner found, the Respondent's representatives
told Union Organizer Christian in no uncertain terms that a union
was not wanted, and evicted him from the premises. After doing so
and while in the middle of the public street, however, the Respond-
ent's representatives did not subside; on the contrary, they threatened
to kick Christian if the latter did not leave, also threatened to punch
him and did in fact strike him twice in and about the chest, and
shoved him violently. In my opinion these actions in the public street
clearly violated Section 8(a) (1),1 and also cast grave doubt on the
Respondent's assertions that it had evicted Christian only to protect
its property.
Viewing the eviction in the light of the events which followed, it
seems clear to me that the eviction was but a pretext to cloak the
Respondent's antiunion designs. Accordingly, I would find that by
its conduct viewed in its entirety the Respondent violated Section
8(a) (1) as alleged.
1 See Arton Studios, Incorporated , 74 NLRB 1158, enfd 168 F . 2d 521 (C.A. 3).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in Oklahoma City, Oklahoma, on October 9, 1961, on the complaint 1
of the General Counsel and answer by the Respondent . The issue litigated was
whether Salyer Stay Ready Filter Corp., herein called the Respondent or the Com-
pany, is forcibly ejecting Harvey Christian , an organizer for the International Asso-
ciation of Machinists , AFL-CIO and its Lodge 850, herein called the Union, from
the Respondent 's property interfered with, restrained , and coerced the Respondent's
employees in the exercise of rights guaranteed them under Section 7 of the Act. All
parties were afforded full opportunity to examine and cross -examine witnesses, to
introduce evidence , to present oral argument and, thereafter , to file briefs. The
parties waived oral argument . Briefs were received from the General Counsel and
counsel for the Respondent.
1 The charge herein was filed June 1, 1961 , and the complaint was issued on July
13, 1961
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from my observation of the witnesses,2 I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Oklahoma corporation, with its office and principal place of
business in Oklahoma City, Oklahoma, is engaged at the said place of business in
the manufacture, sale, and distribution of oil filters. During the year immediately
preceding the filing of the charge herein, a representative period, the Respondent
purchased and caused to be delivered directly to its plant from points outside the
State of Oklahoma, materials used in the manufacture of its products of a value in
excess of $50,000. During the same period, the Respondent sold and delivered
directly to customers outside the State of Oklahoma finished products of a value in
excess of $50,000. Accordingly, I find that the Respondent is engaged in commerce
within the meaning of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, AFL-CIO, and its Local Lodge 850 rep-
resent employees for the purpose of collective bargaining and enter into collective-
bargaining agreements with employees on behalf of their members.3 Accordingly,
I find that they are labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
As hereinabove set forth in section I, the Respondent manufactures oil filters at
a plant located in Oklahoma City. The facility involved is located in an industrial
area at 2400 NE. Fourth Street in the said city and occupies property owned by
the Respondent on the south side of Fourth Street and has four entrances. The
entrance involved here runs southward off Fourth Street and is in the northwest
part of the parking lot used by the employees. It is some 50 or more feet from the
Respondent's office and about the same distance from a fence with a gate in it which
separates the Respondent's office area from the Respondent's plant area.
According to the credited testimony of Bert M. Salyer, the Respondent's president,
this entrance is part of a driveway which begins at the public street line and extends
by ramp into the parking lot. The property from the street line south, including the
entire ramp, is the Respondent's and has never been dedicated as a public street.
The General Counsel offered no witnesses to refute this testimony.
Harvey Christian, the Union's organizer and service representative, testified, with-
out contradiction, that on May 25, 1961, he was requested by the Respondent's
local bsuiness representative to investigate an anonymous letter asking the Union
to organize the Respondent's plant. Pursuant to this request, Christian went to the
address for the plant given in the letter, found that the plant was not there, searched
around, and finally located the Respondent's plant on Fourth Street. He then
returned to the Union's local office, picked up some authorization cards, and again
proceeded to the Respondent's plant. This time he parked on NE. Fourth Street,
about 300 feet from the plant entrance, and walked to the entrance described above,
stationing himself on the ramp about 3 feet from the street line. This was about 4.55
p.m. The reason Christian stationed himself on the ramp at that point was so that
he could give authorization cards to employees leaving the plant as they stopped their
cars before turning into the street.
After he had handed out about three cards, Christian saw a young man standing
in front of the factory building who called to him and asked what he was doing
there. The young man, whom Christian identified as Jerry J. Salyer, then rushed
over to Christian and asked him again what he was doing there. Christian told
young Salyer that he was a representative of the Union and that he was passing
2Unless specifically Indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his or her
demeanor as I observed it at the time the testimony was given Cf Bryan Brotheis
Packing Company, 129 NLRB 285 To the extent that I indicate hereafter that I reject
In part or entirely testimony of any given witness, it is my intent thereby to indicate
that such part or whole of the testimony. as the case may be, is discredited by me
Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote-1.
'From the credited testimony of Harvey Christian.
SALYER STAY READY FILTER CORP. 1213
out authorization cards. Christian handed a card to Salyer. Salyer then told
Christian that the latter was on private property, that the Company did not want a
union, and ordered Christian off. Christian informed Salyer that he was aware the
Company did not want a union but that his purpose was to help the employees in
the plant to get one. Salyer again asked if Christian was going to leave and Christian
told him that he had a perfect right to pass out the cards and that if Salyer thought
this was not so to call the police. Then, as Christian attempted to give out some
more cards, Salyer stood between Christian and the cars that were passing and called
to someone to get his father.
Thereupon, a man whom Christian identified as Bert Salyer, the Respondent's
president and father of Jerry Salyer, came out of the office and approached Christian.
Christian identified himself. In the meantime, Jerry Salyer had seized the cards
from Christian and then returned them upon Christian's protest. Then the elder
Salyer told Christian that he did not want a union at the plant and Christian answered
that he had already been so informed by Jerry Salyer but that the employees seemed
to think differently. Bert Salyer repeatedly ordered Christian off the property and
when Christian did not do so, Salyer finally seized Christian by the arm and shoved
him out into the street, at the same time, according to Christian, calling the latter
a "Chicago gangster," and accompanying this with profanity.
After reaching the middle of the street, Salyer threatened to kick Christian if the
latter did not leave , repeating that this was private property and drawing back his
fist in a threatening manner. Finally Bert Salyer struck Christian twice in and
about the chest and at the same time Jerry Salyer shoved Christian causing the sun-
glasses that the latter was wearing to fall to the ground.
By the time the foregoing occurred almost all of the cars had left the parking lot
and Christian thereupon left the area too.
None of the foregoing testimony was contradicted by Bert Salyer, the only witness
for the Respondent. As theretofore set forth, Salyer testified without contradiction
that the point at which Christian stood was on the Respondent's property. Salyer
also testified that: On a fence between the plant factory and office area are two signs
about 2 by 3 feet in size, one on each side of a gate, reading "Positively no ad-
mittance-apply at office"; these signs were there on May 25, 1961, the day that
Christian had attempted to distribute the authorization cards; and the signs had been
there continuously for some years, having been placed there to prevent solicitation
of the employees by insurance men and peddlers.
Bert Salyer testified additionally that sometime after the incident involved herein
signs reading "No solicitation" were placed at the property entrances. According
to Salyer, there had been a no-solicitation rule in the plant, posted on a plant bulletin
board for several years.
Christian denied having seen the signs on the fence on the day he attempted to
distribute the cards, or on the next day. He did see the no-solicitation signs in June.
However, Christian admitted he was not looking for signs the day of the incident
involved herein and also admitted that he could see "ordinary things" more than 50
feet away with his prescription sunglasses.
Christian further admitted that at the time he went to the Respondent's property
to distribute the cards on May 25, he did not have a single, signed authorization
card from any employee of the Respondent, and that the sole reason for his going
there was the anonymous letter which the Local Union had received, as heretofore
related.
Concluding Findings
The General Counsel contends that the Respondent engaged in interference, re-
straint, and coercion when the Salyers ejected Christian from the property. He
bases his contention upon several grounds: (1) the Respondent did not have a valid
"no-solicitation" rule in effect at the time of the incident; (2) the testimony of
Harvey Christian as to what occurred at that time is neither uncontradicted nor
denied by the Respondent; (3) the undenied, uncontradicted testimony of Christian
establishes he was subjected to continuous physical violence upon his person after
he was ejected from the Respondent's property; (4) Christian's testimony establishes
that the Union was without knowledge as to means available to contact employees
of the Respondent by any means other than those used by Christian; and (5) the
undenied and uncontradicted testimony of Christian establishes that the Respondent,
by the acts and conducts of the two Salyers, was not attempting to protect its prop-
erty but was attempting to interfere with the Union's organizational campaign.
The Respondent, on the other hand, contends that on the date in question it had
a valid no-solicitation rule in effect, that signs were posted for the public to see so
that there was no question that the union representative, Harvey Christian, could
have or should have seen such sign and should have remained off the property;
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent had the right in the face of such a no-solicitation rule to forcibly
eject Harvey Christian from its premises; and lastly that it had the right to use force
to do so under State and Federal law.
I agree with the General Counsel that Harvey Christian's testimony as to what
occurred on April 25, 1961, was neither contradicted nor denied and for that reason
and from my observation of Christian I credit his testimony. For like reason, I
credit the testimony of Bert Salyer to the effect that the place where the incident
occurred was on the Respondent's property.
With regard to the issue of whether the signs on the fence which read "Positively
no admittance-apply at office" were up on May 25, 1961, I note Salyer's positive
statement that the signs were posted some years back to prevent annoyance of the
employees by insurance salesmen and peddlers. When compared with Christian's
statement that he did not see any such signs but that he was not particularly looking
for signs, I find that Salyer's testimony is credible and that the signs were on the
fence at the critical time.
Thus, the question of whether there was a no-solicitation rule with regard to the
parking lot must be resolved from this credited testimony. With regard to the signs,
Salyer testified that they were two in number, were 2 by 3 feet in size, and were
approximately 50 feet from the entrance used by Christian. While I find that
Salyer's testimony is credible, because of the size of the signs and their approximate
position, I find also credible Christian's testimony that he did not see the signs on
the day in question. But, whether Christian saw the signs is not material, since the
posted signs establish the Respondent's rule that it did not permit outsiders to solicit
on its property. Thus I regard the signs as evidence that a no-solicitation rule
existed, but I do not find that the signs necessarily had to be of such size as to
inform the public generally that the lot was posted. This is so because I can find
nothing in the Act or Board or court decisions requiring any specific type of post-
ing of the property so long as the rule is established.
Moreover, neither do I find that the rule did not exist merely because the signs
did not specify what type of admittance was prohibited. Salyer's credited testimony
showed that the rule was for the purpose of preventing all solicitation and the word-
ing on the signs was effective for this purpose. Accordingly, I find that on the day
in question, the Respondent had an existing no-solicitation rule which prohibited
the distribution of literature and solicitation of employees by anyone, including
union organizers, on the Respondent's property.
The issues remaining to be resolved are, accordingly, (a) whether the no-
solicitation rule was valid and (b) whether the Salyers were merely enforcing the
rule when they ejected Christian, or whether their action constituted interference
with the employees' Section 7 rights.
The Board in the Walton Manufacturing Company case 4 has specifically set forth
its test for lawfulness of rules against solicitation by nonemployees on employer
property as follows:
3. No-solicitation or no-distribution rules which prohibit union solicitation
or distribution of union literature by nonemployee union organizers at any
time on the employer's property are presumptively valid, in the absence of a
showing that the union cannot reasonably reach the employees with its message
in any other way, or a showing that the employer's notice discriminates against
the union by allowing other solicitation or distribution .5
The General Counsel contends that Christian's testimony establishes the Union
was without knowledge as to means available to make contact with the Respond-
ent's employees by any other means than those used by Christian on April 25 and
that, therefore, the rule established by the Respondent is invalid under the Board's
test.6 I do not agree.
While Christian credibly testified that his organizational attempt was prompted
by an unsigned letter and that at the time he went to the Respondent's premises he
did not know the names of any of the Respondent's employees, this did not establish
that other means of finding out the names of the Respondent's employees and seek-
ing their support were unavailable to the Union. In connection therewith, the
General Counsel asks that judicial notice be taken that Oklahoma City is a major
metropolitan area. I take judicial notice of this fact but do not find it sufficient, even
when considered in the light of Christian's testimony, to establish that other means
of soliciting employees' support were closed to the Union The most that is shown
4 Walton Manufacturing Company, 126 NLRB 697
5Id at p. 698
6 There is no contention, and no evidence was introduced, to the effect that the Respond-
ent permitted solicitation by others despite the rule.
SALYER STAY READY FILTER CORP. 1215
is that the Union did not resort to any other means but merely sought to establish
contact with the employees the easiest and most obvious way.
Since the Board's test, above cited, makes the rule presumptively valid, the burden
of overcoming this presumption by competent evidence is on the party seeking to
establish that the rule is invalid. The General Counsel, as above shown, has failed
to meet that burden. Accordingly, I find that the rule was valid?
The General Counsel also contends that because the signs were on a fence
approximately 50 feet from the curb line the rule was not applicable to the area
in front of the fence, and that therefore since Christian was in the area in front of
the fence he did not violate the prohibition advertised in the signs. I do not agree.
The signs are merely evidence of the existence of the rule. It does not follow that
the position of the signs on the property in question determines the area or areas to
which the rule is applicable. Even had the property not been posted, once Christian
was told to remove himself from the property he was given sufficient notice to make
the rule applicable to him and to the area where he was handing out the cards.
Finally, there remains for the disposition the question of whether the Salyers were
enforcing the Respondent's rule when they forcibly ejected Christian or whether
their conduct was such that it constituted interference with their employees' Section
7 rights. There can be no question that the Respondent, having a legitimate rule,
had a concomitant right to enforce that rule. When Christian was asked to leave
and he refused, the Respondent could then take steps necessary to eject Christian.
Nevertheless, the General Counsel contends that the Respondent did not act to en-
force the rule but rather to interfere with their employees' rights. Christian testi-
fied that both of the Salyers stated at the time they ejected him that he Company
did not want a union. I credit this testimony and I find that the Company did not
want a union and that both of the Salyers' vocal expressions to Christian indicated
company dislike for and resistance to the Union. However, mere employer re-
sistance to, or expressed employer animosity toward, a union does not render
unlawful otherwise proper enforcement of a valid no-solicitation rule. Indeed, the
Supreme Court has held that a no-solicitation rule is not necessarily invalid even
when enforced in a context of employer unfair labor practices and antiunion
solicitation .8
Nor do I find that the Salyers' continued physical exertions against Christian after
they forced him from the Respondent's property into the public street converted the
otherwise lawful enforcement of the rule into an unlawful act. I have no doubt
that tempers flared and it is possible that in the heat of action, brought on in good
part by Christian's admitted refusal to leave the Respondent's property, more blows
might have been struck than were absolutely necessary to accomplish the task at
hand. This, of course, I do not condone. However, I cannot infer from this, even
though the action might have occurred in full view of the Respondent's employees
(a fact which the record does not necessarily establish), that its purpose was to
interfere with the employees' rights to organize as contended by the General Counsel.
The action occupied too short a span of time for the Salyers to have conceived such
a plan. Only a few minutes elapsed from the time Christian refused to leave until
he finally left the vicinity of the Respondent's plant. I find that what occurred in
the public street was no more than a continuation of action started on the Respond-
ent's property, which action was too closely associated with adrenal flow to be capable
of being turned off like water from a faucet .9
Therefore, I find that the Respondent had a valid no-solicitation rule and that in
ejecting Christian from the property the Respondent officers and agents were law-
fully enforcing that rule. Accordingly, I find that the Respondent did not interfere
with, restrain, or coerce its employees in violation of the Act, and I shall recommend
that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
7 Nor does the test laid down by the Board In the Walton case, supra, footnote 4, re-
quire that the rule against solicitation by nonemployees be adopted for the purpose of
protection of company property and facilities.
8 See N L.R B. v. United Steelworkers of America, CIO, petitioner (Nutone Inc, Inter-
venor ) and N.L.R.B. v. Avondale Mills, 357 U S 357, 362-363.
9 Whether more force than was lawfully necessary was used to eject Christian is a
matter for some other tribunal. The Board's only interest is whether the ejection con-
stituted an unfair labor practice.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent did not engage in unfair labor practices in violation of
Section 8 (a) (1) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions , and upon the entire
record , it is recommended that the complaint heretofore filed herein be dismissed.
International Association of Machinists , AFL-C.IO and Carling
Brewing Company , Inc. (Atlanta Plant)
International Brotherhood of Firemen and Oilers, AFL-CIO
and Carling Brewing Company , Inc. (Atlanta Plant ). Cases
Nos. 10-CD-148 and 10-CD-149. April 20, 1962
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph 4(D) of
section 8(b), the Board is empowered and directed to hear and de-
termine the dispute out of which such unfair labor practice shall
have arisen . . .."
On February 8, 1961, Carling Brewing Company, herein called
Carling, filed charges numbered 10-CD-148 and 10-CD-149, alleging,
respectively, that International Association of Machinists, AFL-CIO,
herein called TAM, and International Brotherhood of Firemen and
Oilers, AFL-CIO, herein called FOI, had been and were threatening,
coercing, and restraining Carling with an object of forcing and re-
quiring Carling to assign particular work to employees in a particular
labor organization or in a particular trade, craft, or class rather than
to employees in another particular labor organization or in another
trade, craft, or class, in violation of Section 8(b) (4) (ii) (D) of the
Act.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director for the Tenth Region of the Board investigated the
charges and provided for an appropriate consolidated hearing upon
due notice to all parties. The hearing was held before Charles B.
Slaughter, hearing officer, on June 19 and 20, 1961. All parties ap-
peared at the hearing and were offered full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing on the issues. The rulings of the hearing officer are free from
prejudicial error and are hereby affirmed. Carling and TAM filed
136 NLRB No. 120.