G. H. Bass & Co.

National Labor Relations Board - Board Decisions

Sep 21, 1981

258 N.L.R.B. 140 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. H. Bass & Co. and Greg Gerritt. Case -CA-
17315
September 22, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 20, 1981, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision.
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, find-
ings,' and conclusions 2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, G. H. Bass &
Co., Wilton, Maine, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In the absence of exceptions, Member Fanning adopts, proforma, the
Administrative Law Judge's conclusion that Respondent's no-distribution
rule is not overly broad on its face. See his partial dissent in Stoddard-
Quick Manufacturing Co., 138 NLRB 615 (1962).
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard in Waterville, Maine, on November 13, 1980.
The underlying charges were filed by Greg Gerritt, an
individual, on March 26, 1980, amended thereto on April
22, 1980, against G. H. Bass & Co. (herein Bass or Re-
spondent), and alleged that Respondent engaged in cer-
tain acts and conduct in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended
(herein the Act). The aforenoted charges and amendment
thereto gave rise to a complaint and notice of hearing
which issued on May 9, 1980.
258 NLRB No. 36
In essence it is alleged that on or about January 1,
1980, Respondent initiated and then maintained an overly
broad no-distribution rule which prohibited the
"[distribution of literature, pamphlets or printed or
graphic material of any description by any employee in
work areas at any time," and Respondent thereby violat-
ed Section 8(a)(1) of the Act. Further, it is alleged that
Respondent independently violated Section 8(a)(1) of the
Act by not permitting Gerritt to post union literature on
its bulletin boards on March 18 and 19, 1980. Still fur-
ther, it is alleged that Respondent by issuing written
warnings to Gerritt on March 19, and April 2, 1980, and
an oral warning on March 25, 1980, in furtherance of its
distribution and posting policies, violated Section 8(a)(3)
of the Act.
Respondent filed an answer conceding, inter alia, juris-
dictional facts but denying all allegations that it commit-
ted any unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the briefs, I made the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, with its principal
office and place of business located in Wilton, Maine, has
been engaged in the manufacture, sale, and distribution
of footwear. Respondent, in connection with the afore-
noted business operations, annually derives revenue in
excess of $50,000 directly from points outside the State
of Maine. Respondent admits, and I find, that it is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent admitted at the hearing, and I find, that
Bass Shoe Workers Association (herein the Union) is,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent, a division of Chesebrough-Ponds, Inc., is
engaged in the manufacture of shoes. The division is
comprised of five plants, one of which is located in
Berlin, New Hampshire, and the others are located in the
State of Maine. The plant involved herein is located in
Wilton, Maine, and is Respondent's largest facility. Re-
spondent employs approximately 1,000 production and
maintenance employees including drivers at its Wilton
plant.
On or about March 12, 19 80 ,1 Greg Gerritt, the
Charging Party herein and an employee at Respondent's
Wilton facility, initiated an organizational drive on behalf
of the Bass Shoe Workers Association to obtain sufficient
employee signatures at that location for the National
Labor Relations Board to conduct a representation elec-
tion. On March 17, in response to the Union's organiza-
I All dates herein refer to 1980 unless otherwise indicated.
140
G. H. BASS & CO.
tional efforts, Charles Morgan, then president of Bass,
issued and distributed a letter at work (G.C. Exh. 6) to
all employees wherein he stated, inter alia, "I think a
Union would be bad for Bass." The lead paragraph in
the letter reads as follows:
Have you ever noticed that whenever something
good comes along, invariably someone wants to
take advantage of it, usually someone who doesn't
want to make an honest contribution, but instead
wants to use it to pursue some crusade of his own. I
believe we have one or more persons in the compa-
ny now who are doing just that by asking you to
sign something that will enable them to request the
NLRB to call an election. We have something good
going for all of us here at Bass. Let's not allow
someone to bring in a union that could disrupt our
company and possibly jeopardize its ability to con-
tinue providing a good living for us, something that
we have all worked together so hard to achieve.
On March 18, Gerritt asked William Daly, personnel
director for the Bass Division for permission to post on
the bulletin boards 2 a response to Morgan's letter of the
previous day. Gerritt told Daly, inter alia, that he found
Morgan's letter "very threatening" and challenged
Morgan to a debate. Further, Gerritt took issue with Re-
spondent's practice of allegedly cutting prices anytime it
wanted and Gerritt wanted to bring this to the attention
of all the employees. 3 Gerritt's written response made
reference to Morgan's letter of March 18 and went on to
note certain union objectives and advantages for employ-
ees at Bass to unionize. Daly offered to set up a meeting
with Morgan for Gerritt to express his access to non-
work areas at the complex to pass around his letter.
However, Daly concluded that the contents in the letter
were "controversial" and denied Gerritt permission to
use the bulletin board for its posting. 4 Gerritt told Daly
that he would post his letter (response) and then left
Daly's office.
The next morning, March 19, before Gerritt was
scheduled to commence work, he posted copies of his
letter (G.C. Exh. 5) on the various bulletin boards
throughout the complex, but as each one was posted it
was then removed by Gordon Norton, head of plant se-
curity, who followed Gerritt around the factory. That
afternoon Gerritt, a warehouse employee, received a
written reprimand and warning from Phil Smiley, the
warehouse supervisor, because of Gerritt's posting efforts
earlier that day. (G.C. Exh. 3.) The reasons for the repri-
mand and warning in pertinent part are stated thereon as
follows:
2 Respondent throughout its warehouse-factory complex in Wilton
maintains approximately 15 to 20 bulletin boards which are generally lo-
cated near timeclocks. In January 1980 Respondent published and distrib-
uted an employee handbook largely authored by Daly which, inter alia,
sets forth certain discipline for infractions such as "plosting or removing
notices from bulletin boards . . . without authorization."
3 Many of Respondent's production employees are compensated on a
piece rate basis.
I Daly admitted that he did not ask to look at the letter and did not
see it but concluded that the subject was "controversial" and not appro-
priate for posting on the basis of what Gerritt expressed orally.
REMARKS: Posting information of a controversial
nature on all plant bulletin boards after being denied
permission to do so and after being specifically di-
rected not to do so. You were warned on Tuesday,
March 18, 1980, by W. Daly that posting such in-
formation on the bulletin boards would not be per-
mitted .... Further violations will lead to more
severe disciplinary action up to and including dis-
charge.
Gerritt had printed a large number of copies of the
same letter which gave rise to the aforenoted reprimand
and on March 24 at lunchtime between 11:30 and noon,
he and coemployee Kathy Berube handed out from 300
to 400 copies to employees in Respondent's three cafete-
rias as well as throughout the plant. 5 The following day,
March 25, Gerritt received an oral warning from his su-
pervisor, Phil Smiley. Gerritt testified without contra-
vention that Smiley told him that he had been informed
that he, Gerritt, had broken Respondent's policy regard-
ing the distribution of literature. 6 Gerritt in turn told
Smiley that he believed that he could lawfully distribute
the material as he had and requested to discuss the
matter further with Daly. Within a few hours Gerritt
and Daly met, the latter confirming what Smiley told
Gerritt earlier, that he was not allowed to "distribute
materials" in the work areas, because it could present
production problems, and a litter problem as well." Ac-
cording to Gerritt, the distribution of material at lunch-
time did not impact on production because all employees
were off the clock and he denied that the distributed ma-
terial created a litter problem noting, inter alia, the nu-
merous litter baskets maintained by Respondent and indi-
vidual employees. Gerritt told Daly that Respondent was
violating the law by so limiting him and that he would
continue to distribute the material in the manner he had
earlier.
Gerritt next distributed prounion material on March
31. 7 On that occasion, Gerritt once again handed out
some 300 to 400 copies of the prounion material (G.C.
Exh. 7) at lunchtime in the cafeteria as well as the dis-
puted work areas. On April 2, Gerritt received a written
reprimand with a concomitant warning for the March 31
distribution (G.C. Exh. 4). While on that occasion Daly
reiterated that Gerritt could not distribute materials in
the disputed work areas, he granted permission pursuant
b The Company sounds a buzzer at 11:30 a.m. thereby signifying the
beginning of the lunch break and all machines shut down and employees
go off the clock until the buzzer sounds again at noon. As noted previ-
ously there are approximately 1.000 employees exclusive of office cleri-
cals employed at the Wilton facility. According to Gerritt, the Compa-
ny's three cafeterias collectively cannot serve more than 200 employees
during the lunch break. Daly asserted that the cafeterias could serve "be-
tween 250 and 275 lemployees]." In any event Daly conceded that the
Company does not have adequate facilities to permit all employees to
have lunch in the cafeterias. Many of the employees therefore have lunch
at their work stations while the machines are shut down. As such. the
General Counsel contends that these work stations are converted into
nonworking areas during the lunch break.
' The rule as stated in the "Employee Handbook" prohibits the
"[dlistribution of literature, pamphlets. or printed or graphic material of
any description by an) employee in work areas at any time" (G.C Exh.
2, p. 31.)
7 The initial charges were filed on March 26.
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Gerritt's request, for the latter to circulate a petition
to collect signatures for a representation election in these
same disputed work areas.8 Gerritt has not since been in-
volved in the distribution of materials at the Wilton
plant.
B. Discussion and Conclusions
1. Posting allegations
It is undisputed that Daly refused to permit Gerritt to
post copies of a prounion letter critical of Respondent on
Respondent's bulletin boards on the stated basis that the
contents were "controversial." It is also undisputed that
Gerritt posted copies of the disputed letter over Daly's
objections which copies were promptly removed by Re-
spondent and for which behavior Gerritt received a writ-
ten reprimand with a warning that for further violations
of Respondent's posting policy he faced "more severe
disciplinary action up to and including discharge." The
General Counsel contends that Respondent by denying
Gerritt access to the bulletin boards thereby violated
Section 8(a)(1) and by thereafter issuing a reprimand and
warning it thereby violated Section 8(a)(3) of the Act.
The Board in Container Corporation of America, 244
NLRB 318 (1979), reaffirmed certain long held principles
which govern the case at hand. It stated as follows:
It is well established that there is no statutory right
of employees or a union to use an employers bulle-
tin board. However, it is also well established that
when an employer permits, by formal rule or other-
wise, employees and a union to post personal and
official union notices on its bulletin boards, the em-
ployees' and union's right to use the bulletin board
receives the protection of the Act to the extent that
the employer may not remove notices, or discrimi-
nate against an employee who posts notices, which
meet the employer's rule or standard but which the
employer finds distasteful.
Applying the foregoing principles to the instant case
an examination of Respondent's permissiveness to em-
ployees vis-a-vis access to its bulletin boards is now in
order.
The record is unclear as to whether Respondent had
any policy regarding posting prior to January 1, 1980.
Thus, Personnel Director Daly did not know whether
there was any policy prior thereto and could not state if
employees were then required to ask for permission
before posting. In any event the policy as expressed in
the new employee handbook which issued in January
1980 prohibited "[p]osting or removing notices from bul-
letin boards or writing on any part of Company property
without authorization." (Emphasis supplied.) The record
discloses, however, that the posting rule has not been ad-
hered to nor has Respondent required employees to re-
quest permission. As testified by Daly:
[E]mployees post it and we have not required them,
although we do say in the Handbook, we do not re-
It is not alleged nor does the record disclose that Respondent violat-
ed the Act with regard to its no-solicitation rule.
quire them to come in and seek permission to do
that. Its just something that we have never con-
trolled all that closely.
The record reveals that employees have posted with
impunity, inter alia, commercial opportunities and mat-
ters dealing with religious and political events. Thus,
Gerritt credibly testified that he observed on the bulletin
boards "material on church suppers, on Christmas fairs,
on selling stores and automobiles, for babysitting, for
butchering deer, and all sorts of things like that." Ger-
ritt's testimony was largely corroborated by Berube who
also testified that she saw posted political announce-
ments; i.e., a donation dinner in support of a political
candidate. Moreover, Berube credibly testified that she
posted without authorization anti-nuclear power litera-
ture and more recently notices of an outing in support of
"Solar Living Day." 9 (G.C. Exh. 8.)
While Daly acknowledged that the Company did not
in practice require authorization in advance of posting,
he asserted without corroboration that Respondent po-
liced the bulletin boards to the extent that it removed
anything "controversial." As stated by Daly:
If there were something there of a political nature,
something which would-might offend a large
group of people, something upon which people
would have strong opinions, one way or the other,
we would take that down. Something immoral, por-
nographic . . . crude jokes, ethnic jokes . . . which
would be controversial, we would remove from the
bulletin boards.
The examples cited by Daly as representative of polic-
ing efforts do not appear to involve requests by Bass'
employees and therefore have no bearing on the issues
herein. Thus, Daly noted that during the recent Maine
presidential primary campaign, representatives for Ken-
nedy visited the plant and requested but were denied
permission to post campaign posters. According to Daly,
Respondent also rejected requests by other politicians to
post material in the plant. Assuming arguendo that Re-
spondent denied access to politicians or other individuals
who are not employed by Bass as testified by Daly, such
occurrences without more falls far short of establishing
that Respondent maintained any cognizable policy at any
time material herein regarding the policing of its bulletin
boards vis-a-vis posting by Bass' employees.°0 In view of
9 Gerritt and Berube largely corroborated each other. I found both
Gerritt and Berube to be responsive, consistent, plausible, and forthright
as witnesses. As such and on the basis of observing their overall demea-
nor, I credit Gerritt and Berube in all critical respects.
10 According to Daly most of the material posted does not come to his
attention. For example Daly denied seeing or knowing about the material
posted by Berube although she testified that her anti-nuclear pamphlet
was posted in excess of 6 months with the knowledge of management of-
ficials including the Superintendent in her department. I am hardly per-
suaded that Daly's testimony inspires confidence as confirmation of Re-
spondent's professed policing policy. Moreover, I found Daly otherwise
to be an unreliable witness. His testimony was largely uncorroborated in
critical areas, conclusionary, inconsistent, and lacked candor. For exam-
ple, Daly first testified that Morgan's letter was distributed to all employ-
ees at the end of the shift to avoid litter but later retreated and conceded
Continued
142
G. H. BASS & CO.
the foregoing and on the total state of this record, I find
that Respondent has not had at any time material herein
an established policy restricting the posting of material
by its employees.
Having determined that Respondent was without any
established restrictive policy, I further find in the cir-
cumstances of this case that its asserted reason for deny-
ing Gerritt permission to post his letter on the basis that
it would tend to generate controversy is pretextual. In
this regard it is noted that Daly turned down Gerritt's
request although he did not read the letter or ask to
peruse its contents. Further, Daly was undoubtedly
aware of Morgan's antiunion letter the previous day
which while not naming Gcrritt, clearly called attention
to his overt efforts to obtain sufficient employee signa-
tures for an NLRB election. In these circumstances I
find it fair and reasonable to conclude that Daly elected
not to see Gerritt's letter because he was told by Gerritt,
the union organizer, that it was a response to Morgan's
letter and he, Daly, could surmise that its contents fa-
vored the Union.
Insofar as Daly treated Gerritt's response as "contro-
versial" because it discussed Bass' price cutting, it is
noted that Gerritt's prounion message of nearly 400
words stated only "a Price cut is Not our Fair Share."
With regard to Gerritt's challenge to Morgan, the letter
clearly invited Morgan to a debate over the relative
merits of a union at Bass in response to the latter's an-
tiunion message. Under all of the foregoing circum-
stances, noting particularly the animus expressed in Mor-
gan's antiunion letter, I find it likely that Daly's objec-
tions to Gerritt's letter manifested a distaste for its
prounion content and that he seized upon the term "con-
troversial" as a euphemism. On the other hand I do not
discern anything "offensive, defamatory or opprobrious"
about the disputed letter which might otherwise lose for
its author the protection of the Act. See Timpte, Inc., 233
NLRB 1218 (1977); Ben Pekin Corporation, 181 NLRB
1025 (1970), enfd. 452 F.2d 205 (2d Cir. 1971), Container
Corporation of America, supra. In short, Gerritt's proun-
ion letter constitutes permissible campaign rhetoric.
Under all the circumstances, noting particularly that
Respondent at all times material herein has permitted its
employees essentially on untrammeled use of its bulletin
boards for posting, inter alia, personal, social, and reli-
gious notices, I find that Respondent's denial of access to
Gerritt violated Section 8(a)(1) of the Act. See Special
Machine and Engineering, Inc., 247 NLRB 884 (1980);
Group One Broadcasting Co., West, 222 NLRB 993
(1976); Nugent Service, Inc., 207 NLRB 158 (1973);
Tempco Manufacturing Company, Inc., 177 NLRB 336
(1969); Challenge Cooke Brothers of Ohio, Inc., 153 NLRB
92 (1965); Container Corporation of America, supra. Fur-
ther, Respondent by issuing a reprimand and warning to
Gerritt because he posted prounion material which it
deemed "controversial," Respondent thereby violated
that he did not know when this letter was distributed. Berube on the
other hand credibly testified without contravention that she received a
copy of Morgan's letter at 9:30 a.m. at her work station. On the basis of
my observation of Daly's demeanor and for the reasons set forth above, I
reject Daly's testimony in all material respects where not otherwise sup-
ported by probative evidence.
Section 8(a)(3) of the Act. See Tempco Mfg. Co., Inc.,
supra at 347-348.
2. The no-distribution rule allegations
The rule in dispute prohibits the following activity:
Distribution of literature, pamphlets or printed or
graphic material of any description by any employ-
ee in work areas at any time.
It is undisputed that on March 24 Gerritt distributed
from 300 to 400 copies of his prounion letter which he
had previously posted. Gerritt distributed this material at
lunchtime between 11:30 and noon to employees in the
cafeteria and at their work stations. It is also undisputed
that Gerritt distributed a separate campaign flyer on
March 31, in the same manner as the earlier distribution,
to wit, at the lunch break to employees in the cafeteria
and at their work stations. Respondent treated these ac-
tivities as violations of its rule against distributing litera-
ture in work areas and administered an oral warning on
March 25 for the earlier distribution and on April 2 it
issued a written reprimand with a concomitant warning
for the March 31 distribution.
The General Counsel contends that the disputed rule is
overly broad on its face and that Respondent, by limiting
the distribution of Gerritt's literature to certain areas
during the lunch break, thereby violated Section 8(a)(1)
of the Act. Further, the General Counsel contends that
Respondent was motivated by antiunion considerations in
issuing a reprimand and warning to Gerritt on April 2
thereby violating Section 8(a)(3) of the Act.
The disputed rule appears in the new employee hand-
book which Respondent issued in January 1980. Accord-
ing to Respondent, the rule was adopted to correct the
widespread distribution of material that had been going
on in the work areas prior thereto which "hindered the
employer's production process" particularly those em-
ployees paid on a piece-rate basis.
The Board in Stoddard-Quirk Manufacturing, Co., 138
NLRB 615, 621 (1962), drew sharp distinctions between
oral solicitation and the distribution of literature in an in-
dustrial setting and summarized in relevant part as fol-
lows:
[W]e believe that to effectuate organizational rights
through the medium of oral solicitation, the right of
employees to solicit on plant premises must be af-
forded subject only to the restriction that it be on
nonworking time. However, because distribution of lit-
erature is a different technique and poses different
problems . . . we believe organizational rights in that
regard require only that employees have access to non-
working areas of the plant premises. [Emphasis sup-
plied.]
Counsel for the General Counsel and Respondent each
citing Stoddard-Quirk are in accord insofar as Gerritt
under the Act is at liberty to distribute material (absent
special or unusual circumstances) in nonworking areas,
during nonworking time. The dispute turns on whether
certain work areas during the lunch break in the circum-
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances of this case should be treated as nonworking
areas for the purposes of distributing literature. The
record clearly supports an affirmative finding.
The record discloses that for approximately 1,000 em-
ployees employed at Bass' Wilton complex, Respondent
provides three cafeterias with a collective capacity to
serve no more than 275 employees during lunchtime. Re-
spondent concedes that the facilities are inadequate and
as such has permitted many of its employees to have
lunch at their stations.
As testified by Daly:
[M]ost of the workers . . . have a little box or con-
tainer of some sort that they put under their ma-
chines, that they use for trash or wrappings and
paper bags or what have you from the lunch re-
mains. They also have a little area where they keep
coffee, thermos bottles, and what have you.
Further, the record discloses that a buzzer sounds both
at the beginning and the end of the lunch break. The
lunch period is between 11:30 and noon at which time all
machines are required to be shut down, work stops, and
employees punch out, and go off the clock. In these cir-
cumstances it is patently clear and I find that such areas
at lunchtime are in essence lunchrooms or nonworking
areas where absent special or unusual circumstances em-
ployees are afforded the protection of the Act to distrib-
ute literature. See, e.g., Oak Apparel, Inc., 218 NLRB 701
(1975); Rockingham Sleepwear, Inc., 188 NLRB 698, 701
(1971). See also Transcon Lines, 235 NLRB 1163, 1165
(1978), enfd. 599 F.2d 719 (5th Cir. 1979).
Respondent expressed certain apprehensions regarding
a potential negative impact on production, particularly
employees working on piece rates which assertedly flows
from the distribution of literature. The record, however,
demonstrates that such fears in the circumstances of this
case are not warranted. First it is noted that Daly whose
experience at Bass' Wilton complex commenced in July
1979 admitted that from that time until the disputed rule
was promulgated by him in January 1980, "[h]e had not
actually observe[d] people distributing literature." Insofar
as lunch litter and trash may be attributed to piece rate
employees, Daly stated, "to my knowledge, no prob-
lem." Daly noted that these employees are responsible
and many of them maintain trash recepticles under their
machines.
I give no credence to Daly's unsupported assertion
that there is a significant distinction between lunch litter
and trash on one hand and literature distributed to em-
ployees in the plant on the other insofar as potential
litter problems or as impacting on production. In this
regard it is noted, inter alia, that newspapers are sold at
the plant and employees are permitted to have newspa-
pers, magazines, and other reading material at their work
stations. Daly also testified that at the end of the shift on
March 31 he discovered on the floor under machines a
total of approximately six campaign flyers which had
been distributed on March 24 and 31. Such unsupported
testimony is hardly persuasive insofar as establishing by
probative evidence that Gerritt's distribution in these
areas at lunchtime created a litter problem or impacted
on production. First, there was no showing that the par-
ticular flyers which were discovered by Daly were given
to employees in or around their work stations. More-
over, given the fact that between 600 and 800 flyers
were distributed on the two occasions in question and
that Daly only testified about a handful tends to belie the
contention that distributing in these areas poses a litter
problem.
In sum, I reject Respondent's contention that distribut-
ing literature in the disputed areas at lunchtime poses a
litter problem or impacts on production. As no special or
unusual circumstances exist I find that Respondent, by
denying Gerritt access to these "nonworking" areas and
by issuing oral and written warnings in connection there-
with, violated Section 8(a)(l) of the Act as alleged. "
See Oak Apparel, Inc., supra: Rockingham Sleepwear,
supra.
For reasons stated previously I have found that Re-
spondent's warning to Gerritt for "posting" was violative
of Section 8(a)(3) and (1) of the Act. The General Coun-
sel contends, the record supports, and I find that Re-
spondent's warnings to Gerritt for "distributing material"
were also predicated on antiunion considerations and Re-
spondent thereby additionally violated Section 8(a)(3)
and (1) of the Act.
The record discloses that Gerritt was the initiator of
the union movement at Bass' Wilton complex and its
most active organizer and that Respondent at all times
material had knowledge thereof. In response thereto Re-
spondent in a strongly worded antiunion message viewed
the Union as "bad" and "disrupt[ive]" for Bass and in-
structed its employee to tell the union solicitors (Gerritt)
"to go elsewhere to conduct their crusades." (G.C. Exh.
6.) Respondent's antiunion animus so revealed, it is
hardly surprising that Respondent would elect to first en-
force its rules against Gerritt with regard to his prounion
message. Significantly, Respondent had never invoked
discipline for violations of its posting or distribution rules
until it administered the disputed warnings to Gerritt, al-
though posting and the distribution of material was a fre-
quent occurrence. With regard to posting it is noted as
testified by Daly that employees did so "almost indis-
criminately" and without advance authorization as re-
quired by Respondent's rules. Insofar as the distribution
of materials creating litter and production problems, for
reasons stated previously such is not supported by credi-
ble evidence, and its reliance thereon as the basis for is-
suing warnings to Gerritt is pretextual. Thus, Berube cre-
dibly testified that solicitation and the distribution of ma-
terial are almost weekly occurrences with one such dis-
tribution involving Morgan's antiunion letter which was
handed to her at her work station at 9:30 a.m. 12
II While Respondent has unlawfully applied its rule, I find in disagree-
ment with the General Counsel that the disputed rule on its face is not
overly broad but comports with the guidelines enunciated in Stoddard-
Quirk, supra, and shall dismiss this allegation. See also Genesee Merrhants
Bank & Trust Co., 206 NLRB 274 (1973).
a2 Respondent's reliance on N.L.R.B. v. United Steelworkers of Amer-
ica, CIO [Nutone, Inc.], 357 U.S. 357 (1958), and Lutheran Hospital of
Milwaukee, 224 NLRB 176, 181 (1976), for the proposition that where, as
in the instant case, the Employer has not been charged with coercive an-
Continued
144
G. H. BASS & CO.
For reasons set forth above and on the entire state of
this record, I find that the General Counsel has estab-
lished the elements for a prima facie case sufficient to
warrant an inference that Gerritt's union activity was a
motivating factor in Respondent's decision to invoke dis-
cipline against Gerritt. See Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). I further find
as required under Wright Line that Respondent has failed
to demonstrate affirmatively on the basis of credited evi-
dence that it would have disciplined Gerritt absent his
union or protected activity. Accordingly, I find that Re-
spondent has additionally violated Section 8(a)(3) as al-
leged.
CONCLUSIONS OF LAW
1. The Respondent, G. H. Bass & Co., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Bass Shoe Workers Association is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminatorily denying Greg Gerritt, its em-
ployee, access to its bulletin boards and by removing
prounion material which was posted on the bulletin
boards by Gerritt, Respondent violated Section 8(a)(l) of
the Act.
4. By refusing to allow its employees to distribute lit-
erature at lunchtime in areas where employees consist-
ently have their lunch other than cafeterias, Respondent
has unlawfully overextended its no-distribution rule to
encompass nonworking time in nonworking areas there-
by violating Section 8(a)(l) of the Act.
5. Respondent issued reprimands and warnings to
Greg Gerritt for posting material on the bulletin boards
and distributing literature on the basis of antiunion con-
siderations thereby violating Section 8(a)(3) and (I) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Other than as set forth above Respondent has not
violated the Act as alleged.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Thus, it having been found that Respondent unlawful-
ly issued reprimands and warnings to Greg Gerritt for
posting material on the bulletin boards and distributing
literature and that Respondent thereby violated Section
8(a)(1) and (3) of the Act, I shall recommend that said
reprimands and warnings be rescinded and expunged
from Gerritt's personnel file and other records.
tiunion distribution in work areas, the Employer has an absolute privilege
to distribute in said work areas is misplaced. It is not the employer's right
to distribute that is questioned but rather that by doing so it tends to cast
doubt on his expressed concern over litter and production problems. In
any event the cases relied on by Respondent are factually distinguishable.
For example in Nutone there was no showing that either the employees
or the Union requested the employer, who was himself engaging in an-
tiunion solicitation, the use of the facilities for prounion solicitation.
N.L.R.B. v. United Steelworkers of America (Vutone, Inc.). supra at 363.
As the record does not reflect any previous history of
unfair labor practice findings engaged in by Respondent,
I shall recommend the narrow "in any like or related
manner," injunctive language. See Hickmott Foods, Inc.,
242 NLRB 1357 (1979).
On the basis of the above findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '3
The Respondent, G. H. Bass & Co., Wilton, Maine, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully denying employees access to its bulletin
boards to post prounion or related material and remov-
ing such material from its bulletin boards.
(b) Unlawfully overextending its no-distribution rules
to encompass nonworking time in work areas which
become nonworking areas at lunchtime.
(c) Unlawfully issuing reprimands or warnings because
employees posted or distributed prounion material or be-
cause they otherwise engaged in protected union activi-
ty.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Rescind and expunge all reprimands and warnings
for the posting of prounion or related material on its bul-
letin boards and distributing such material during lunch-
time from Greg Gerritt's personnel file and other re-
cords.
(b) Post at its Wilton, Maine, plant copies of the at-
tached notice marked "Appendix."' 4 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region , in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed only insofar as it alleges unfair labor practices not
found herein.
'a 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.
14 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the Nation-
al Labor Relations Board found that we have violated
the National Labor Relations Act, as amended, and has
ordered us to post this notice.
WE WILL NOT unlawfully deny our employees
access to our bulletin boards to post prounion or re-
lated material and WE WILL. NOT remove such mate-
rial from our bulletin boards.
WE WILL NOT overextend our no-distribution
rule to encompass areas which have become non-
working areas during lunchtime.
WE WII.L NOT issue reprimands or warnings to
our employees because they have posted on our
bulletin boards prounion or related material or they
have distributed such material during lunchtime or
they have otherwise engaged in protected union ac-
tivity.
WE WIL.l. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL rescind and expunge all reprimands and
warnings for the posting of prounion or related ma-
terial on our bulletin boards and distributing such
material during lunchtime from Greg Gerritt's per-
sonnel file and other records.
G. H. BASS & Co.
146